The Commerce Clause (and its abuse)

Perhaps you’ve heard the controversy over Obamacare and its Constitutionality, specifically regarding the commerce clause, as Pelosi and company claim the commerce clause gives the Federal government the authority to force you to purchase a product — you’re a criminal simply for being born if you don’t take action.

Many (most?) normal people who simply read The Constitution see this as an absurd abuse of the commerce clause, but remember politicians aren’t normal people; they seek to increase power any way they can.

We won’t make predictions on whether Obamacare will survive the challenge, but we can note a previous case using the commerce clause and you’ll get an idea of how politicians believe they can use the commerce clause to do whatever they want without restriction, and how courts grab things out of thin air nobody else would ever consider based on the plain text.

The 2005 GONZALES v. RAICH SCOTUS case involves a California person growing marijuana for their own medical use (don’t get hung up on the “medical marijuana” debate or you’ll miss the point). That’s legal by California law, but not by Federal law. In the case of conflicting law, what would the founders proclaim? Should the Federal government have authority to trample states’ law? That’s the ultimate question before the court.

The claimed authority comes via the commerce clause — the idea Federal regulations between states and countries are legitimate use of Federal authority. But if a person performs an activity which never crosses state lines, how can the Federal government claim authority via the commerce clause? What interest does the Federal government have in regulating private state matters in that situation? See what the court ruled:

(b) Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U.S. 146, 151. If Congress decides that the “’total incidence’” of a practice poses a threat to a national market, it may regulate the entire class. See, e.g., id., at 154—155. Of particular relevance here is Wickard v. Filburn, 317 U.S. 111, 127—128, where, in rejecting the appellee farmer’s contention that Congress’ admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee’s own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.
GONZALES v. RAICH 545 U.S. 1 (2005) (

In other words, because he wasn’t buying across state lines (i.e. interstate commerce), he might affect other areas of the country due to his lack of purchase, and thus, it’s really interstate commerce, and the Federal government can regulate it.

Yes, the ruling really means INTRAstate commerce is now INTERstate commerce, (the ruling re-defined the English language). Doublespeak at its best — Orwell would be proud.

Does anyone with even a vague understanding of the founding fathers believe they intended such conclusions? When activist courts re-define language to get whatever opinion they want, any legal arraignment can be redefined to whatever the Feds desire — The Constitution may as well not exist as it means nothing. As Justice Thomas said in his 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.

Justice O’Connor also dissented:

The Court’s definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market.

We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite… . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, pp. 292–293 (C. Rossiter ed. 1961).

Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.

In essence, the verbal twister on defining interstate commerce gives the government unlimited power to do anything, as both Justice Thomas and Justice O’Connor note.

Expect to see similar lines of argument in support of the newly expanded Federal power grabbed by the national health care law. Again, don’t become involved in the issue of national health care, but be very concerned about the staggering increase in Federal power. Ask yourself one question:

If the act is upheld, do any limits on Federal power remain? Does The Constitution maintain any limits, or continue to protect any rights?

Filed Under: The Constitution

Recommended Citation:
Yeager, Darrin "The Commerce Clause (and its abuse)" (2024-05-19 17:20),
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