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The Enumerated Powers Series: The Commerce Clause

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Photo by Chanaka on

Let’s rewind a few centuries to look at the evolution of the infamous “commerce clause”. The clause says: 

“To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;”

That’s it. That’s the infamous commerce clause in Article 1, Section 8 of the U.S. Constitution. 

Original Context/Drafting 

In 1787, during the drafting of the Constitution, those involved in the Constitutional Convention were well aware of the major issues the confederacy was facing under the Articles of Confederation. One of the critical issues killing the young country was its struggle to streamline commerce. However, those in the convention were not as concerned about interstate commerce amongst the states as they were with foreign commerce, and most of the interstate commerce issues that the founders wanted to address, they addressed in other sections of the Constitution, specially in Article 1, Sections 9 and 10(Congressional Research Service Report (CSR)). 

Case Law and Precedent 

The government, when determining its own power, almost always errs on the side of greater government power than lesser government power. Never forget this. 

So, keeping this in mind, I’m going to walk you through a few of the Supreme Court cases that took the commerce clause and made it the ambiguous catch-all power it is today.

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The first major shift in Congress’s commerce power occurred in 1824 as a result of the Supreme Court case, Gibbons v. Ogden. Ogden had purchased rights from a company who had a monopoly on the Hudson River between New York and New Jersey. This monopoly was legitimized by state law. Ogden’s purchase allowed him to operate his steamboat in the waters owned by the monopoly. Ogden sued Gibbons because Gibbons began operating his steamboats in the same waters… but without the approval of the monopoly (Fulton and Livingston). 

"The Court did not soon revisit this expansive view of the Commerce Clause. Instead, over the next several decades, the Court considered the boundaries of the 'dormant Commerce Clause' doctrine—the implied limitation of the Commerce Clause on a state's ability to regulate commerce.49 This, combined with the relatively cautious exercise of the power by the early Congresses, meant that the Supreme Court did not have occasion to consider the limits of Congress's power under this doctrine for almost 60 years." (CRS Report)

However, things got really interesting after that 60 years passed and Congress started meddling in areas previously untouched. Case upon case built the precedent that Congress not only has power to regulate commercial activities but also has discretion in regulating activities that they believe could affect interstate commerce. 

"Thus the Court found that in some cases, events of purely local commerce (such as local working conditions) might, because of market forces, negatively affect interstate commerce, and thus would be susceptible to regulation.58 The Court has also held that an activity which in itself does not affect interstate commerce could be regulated if all such activities taken together in the aggregate did affect interstate commerce.59 Under the reasoning of these cases, the Court has upheld many diverse laws, including laws regulating production of wheat on farms,60 racial discrimination by businesses,61 and loan-sharking.62" (CRS Report)

Perhaps the most powerful of these Supreme Court cases was Wickard v. Filburn in 1942. In Wickard, the Court was asked if a federal quota system, created by the federal Agricultural Adjustment Act of 1938, could restrict the amount of wheat that an individual produces from homegrown bushels of wheat. In other words, if an private individual grows his or her own wheat and uses that wheat to provide for themselves their own bread and flour, is this wheat subject to federal law? 

According to the Court, yes. Yes, this private production of wheat within one state (intra versus inter) should be subject to federal law because in the aggregate, if many people grow their own wheat instead of buying wheat from stores, the economy can be affected. I hope this blows your mind as much as it does mine. If the Courts can find a way to justify the government regulating a private individual’s decision to grow their own food…what can’t they regulate?

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"In upholding the statute as constitutional, the Court held that economic activities, regardless of their nature, could be regulated by Congress if the activity 'asserts a substantial impact on interstate commerce.... '94 The Court reasoned that the growing of wheat, even if only for a family's personal consumption, provided an alternative to the marketplace that was both viable and competitive.95 Although the Court admitted that one family's production alone would likely have a negligible impact on the overall price of wheat, if combined with other personal producers the effect would be substantial enough to make the activity subject to congressional regulation.96 The rationale of combining individual effects to find substantial impacts on interstate commerce has become known as the "aggregation theory," and arguably represents the most far reaching example of Congress's authority to regulate under the Commerce Clause.97"(CRS Report)

There were a few cases, United States v. Lopez (1995) and United States v. Morrison (2000) that the Supreme Court arbitrarily went somewhat against the precedent set in Wickard by saying that the federal government could not regulate certain items, such as guns (much more detail here that I’m leaving out for simplicity’s sake) since they were not affecting commerce in the aggregate. This is where understanding the dangers of arbitrary power is so critical. The government can decide when to curb government power and when not, and it doesn’t have to have any coherency or consistency with itself because government is making its own rules.

And so, here we are. The Supreme Court, over the centuries has slowly found a way to Constitutionally justify the federal government’s ability to limit the way that an individual chooses to grow a plant on his own property or regulate what an individual chooses to ingest. Obviously, these are just two examples, examples of a list that I can’t realistically write out here since the list of items and actions subject to federal regulations according to this precedent is limitless.

"An examination of the United States Code shows that more than 700 statutory provisions explicitly refer to either "interstate" or "foreign" commerce, covering a significant number of issues. These issues include agriculture,1 banking,2antitrust,3 securities,4 business regulation,5 energy regulation,6 hazardous substances,7 consumer credit,8 sports regulation,9 the Internet,10 endangered species,11 civil rights,12 child support,13 child pornography,14 abortion,15criminal law,16 controlled substances,17 food,18 firearms control,19 terrorism,20 obscenity,21 gambling devices,22 labor,23industrial safety,24 pensions,25 environmental law,26 fish and wildlife,27 medical products,28 water pollution,29 atomic energy,30 shipping,31 motor vehicle safety,32 airplanes,33 and tort litigation."34
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Friends, this power, justified by the commerce clause, is truly staggering…and limitless. I wish I had more room and time to unpack this clause and the ripple effects of it’s continued misinterpretation even more, but I hope, for now, I’ve wet some appetites. You see, this infamous commerce clause is the same clause the government uses to justify all federal drug policies, federal drug incarcerations, federal drug law enforcement agencies, federal drug task force teams and federal drug asset seizure forfeitures.

The fact that this clause is the foundation for an innumerable number of laws and new agencies and regulations. Truly, when has anything the government’s done been out of pure altruism rather than a greed for power?

The Liberty Belle

4 thoughts on “The Enumerated Powers Series: The Commerce Clause”

  1. R. Bruce Hartnett

    Another reason I’ve {and others} been involved in fighting the misapplication/unconstitutional statutory laws for decades. Our local Law also understands why our property is Posted with detailed signs of Notice & Warning (USC Title 18, Sec 241, 242, etc {1983}). [ and
    How can they dare to try to tell me what I can plant in our large Garden to both Eat & Give away!!!

  2. “Truely, when has anything the government’s done been out of pure altruism rather than a greed for power?” ..Liberty Belle 24 August 2022

    As I’m sure you are well aware and contrary to the belief of the left there is no Constitutional context for altruism in government. But you also speak of “Greed for Power”.

    The GOP while seldom known for proposing legislation, once spent at least a little face time opposing legislation the Democrats were trying to pass. With the Inflation Reduction Act and other legislation the Biden administration has recently passed they showed more concern with defending Trump against the FBI raid on his home. The reasoning behind this is the Republican party has found it not only easier but more productive to stoke the flames of a culture, or populist wars where they can get away with not having any platforms yet nominating empty suit candidates like Dr. Oz and Hershel Walker. Republican politicians pretend they’re engaging in class warfare on behalf of the downtrodden. The same politicians who are quite comfortable on claiming to be “of the people” insist on living the life of an elite. One set of elites waging a battle against another set of elites by larping as class warriors. While in reality they are garden variety demagogues, pressing buttons that politicians have manipulated since the beginning of time. The “Contract with America,” the “Moral Majority,” “Compassionate Conservatism,” the “Tea Party,” and, now, MAGA—these are the public relations concoctions, the theatrical props, the bright and shiny things that traditional Republican voters have been manipulated into believing for decades but rarely see anything produced that was promised. It’s ultimately the same concept repackaged for a new generation under a different label. It’s self-serving political theatre as witnessed by antics of Florida Governor DeSantis war of revenge with Disney and Texas Governor Abbott busing illegal aliens to Washington and New York. It comes down to two Governors running for re-election and/or the Presidency using taxpayer paid gimmicks to promote their candidacy. Meanwhile their fabricated dramas rake in millions nationwide to benefit their campaigns. This is how we get oligarchs running our government. It’s a shtick and they will continue to engage in it as long as it lines their pockets. One last thing. We hear a lot “The rank and file are fine. It’s the leadership that’s bad.” That’d be nice if it was totally true but it’s not. America can survive the demagogues it’s their gullible audience that will kill democracy because democracy has no solution for how to fix itself when a large enough share of the populace goes sour.

    As the old saying goes “I’m not prophetic, it’s just that I’m old enough to have seen this dog and pony show on more than one occasion”.

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