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Information Connection: Runaway Court

“Because I Said So”
Sean P. Healy, March 11, 2003

“Government's view of the economy could be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.” -  Ronald Reagan, at the White House Conference on Small Business, August 15, 1986

Democrats seem to believe that the government can do whatever it wants, as long as it has good intentions. But if they proposed a constitutional amendment that said so, most people would think they’d lost their minds. In reality, the Supreme Court has amended the Constitution to say just that.

The Court has wiped out almost all of the carefully constructed constitutional limits to the power of the federal government, leaving us with an all-powerful Congress. This article will discuss the Commerce Clause. This sounds like a dry subject, but keep in mind that the Commerce Clause is the pretext now used by the federal government to doanything it wants to. If you aren’t hopping mad by the end of this article, then literally nothing the government does will make you mad.

One of the paramount concerns of the people at the time of the ratification of the Constitution was to incorporate checks and balances into the structure of our government. The structure they created is intended to balance the power of the states against that of the federal government; the power of the judicial and executive branches against the legislative branch; and the power of the individual citizens against the government.

James Madison said in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government, are few and defined.” Madison was writing in support of a federal government and constitution, seeking to reassure the people that the government would stay within its boundaries.

The Tenth Amendment made this view the law of the land, stating: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This means that the federal government has no power to do anything unless the Constitution specifically authorizes it. This was one of the key provisions intended to check the power of the federal government.

One of the specific powers granted to Congress is the power “To regulate commerce . . . among the several states. . .” At the time the Constitution was ratified, “commerce among the several states” meant a person in one state selling something to a person in another state. As we will see, those words mean something different now. The Constitution delegates a number of other specific powers to the federal government, including the power to make bankruptcy laws, coin money, create a post office, declare war, and to raise and support armies and a navy. There is no general grant of power: That general “police power” is reserved to the states under the Tenth Amendment.

Until the 1930s, Congress rarely tested the limits of the Commerce Clause. Consequently the Supreme Court’s Commerce Clause decisions mainly involved striking down acts of individual states, when they infringed on the free flow of interstate commerce. The Court consistently drew strict distinctions between “commerce” and other business activities such as manufacture, mining, farming, and production, stating that the latter were not subject to Congress’ power. For example, in In U.S. v. E.C. Knight Co., 156 U.S. 1 (1895), the Court commented: “Commerce succeeds to manufacture, and is not part of it.” A.L.A. Schlechter Poultry Corp. v. U.S., 295 U.S. 495 (1935) was the challenge to the constitutionality of NIRA. The defendants were in the business of slaughtering chickens and selling them to retailers.

They were indicted for violating a code which had been adopted by the President under the authority of NIRA. The Court deeming the law unconstitutional because items “the flow in interstate commerce had ceased.” The Court explained: “Production, whether by way of manufacture, mining, farming or any other activity, is not commerce and is not subject to regulation under the commerce clause.” The Court in Carter v. Carter Coal Co., 298 U.S. 238 (1936) made a similar distinction between production and trade, holding that only the latter qualifies as commerce.

The Court refused to allow Congress to regulate these other activities, ruling that they did not constitute “commerce” and therefore were beyond Congress’ power. The Court also drew a sharp line between “intrastate commerce,” which occurs within a single state, and “interstate commerce,” which crosses state lines and therefore may be regulated by Congress under the Commerce Clause. To avoid confusion between those very similar terms, I will refer to intrastate commerce as “in-state commerce.”

The Court drew one distinction that would prove to be significant in coming years. In the Houston & Texas Railway v. United States, 234 U.S. 342 (1914) (known as the Shreveport Rate Cases), the Court upheld an act of Congress which regulated rates of railroads which were located wholly within one state. The Court reasoned that the operations of those railroads were so closely related to actual interstate commerce that Congress couldn’t effectively regulate one without regulating the other. This was the first time the Court allowed regulation of in-state commerce based on the justification that such regulation was “necessary and proper” in order to regulate interstate commerce.

In the 1930s Franklin Delano Roosevelt introduced a number of bills intended to alleviate the effects of the Great Depression. These “New Deal” programs included the Social Security Act of 1935, the National Industrial Recovery Act (suspending antitrust laws to reduce competition and raise wages), the Agricultural Adjustment Act (regulating agricultural production), the creation of the FDIC, and various securities regulations. The Supreme Court promptly declared eight of these New Deal programs unconstitutional. The Court announced three unanimous decisions ruling New Deal legislation unconstitutional on May 27, 1935. As a result this day was called “Black Monday.”

On February 5, 1937, after a strong reelection victory, Roosevelt sent a bill to Congress that would allow him to add six additional justices to the Supreme Court. This would have raised the total from nine justices to fifteen. Adding six presumably liberal justices would have given Roosevelt a strong majority, ensuring that his New Deal programs would face no opposition from the Court. Under strong criticism he eventually dropped the bill, but apparently the message had been received loud and clear. For some reason Justice Owen Roberts decided to switch sides and began voting in favor of questionable legislation.

This reversed the narrow majority, and as a result the Court began rubber-stamping virtually every law passed by Congress. The case which signaled the change was West Coast Hotel v. Parrish, 300 U.S. 379 (1937), in which the Court upheld a minimum wage law just like the one the Court had overturned less than ten months ago in Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). Justice Roberts changed his vote, changing the outcome of the Parrish case. He claimed that he saw valid distinctions between the two cases, but critics called his sudden reversal "the switch in time that saved nine.”

This switch signified that the Court had wholly abdicated its role in reining in Congress. The Court granted its approval to virtually everything Congress did for almost sixty years. Here are some of the most significant decisions:

<         Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 (1937), Chas. C. Steward Mach. Co. v. Davis, 301 U.S. 548 (1937), and Helvering v. Davis, 301 U.S. 619 (1937) upheld various provisions of the Social Security Act.

<         NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937) held that the National Labor Relations Act, which required employers to recognize unions, did not violate the Commerce Clause. This case has been interpreted to create the “substantial effects test,” which allows Congress to regulate any activity which has such an effect on interstate commerce.

<         United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941), upheld the Fair Labor Standards Act, which banned interstate shipment of goods produced by employees who were paid less than a minimum wage or who worked over 44 hours per week without overtime pay.

<         United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942) upheld Congress’ power to regulate in-state milk prices. The Court again relied on the claim that Congress had to be allowed to regulate in-state commerce in order to regulate interstate commerce. At least the Court required some sort of commerce to be involved. But not for long.

November 9, 1942 was a day that will live in infamy. On that day in Wickard v. Filburn, the Court considered whether Congress could impose quotas on wheat produced not for commerce, but “wholly for consumption on the farm.” The Court threw out the distinction between “commerce” and other activities, holding that Congress can regulate any activity as long as it “exerts a substantial economic effect on interstate commerce.” It doesn’t matter that a specific person’s activities are “trivial.” He is still subject to regulation if his activities combined with other similar ones have any measurable effect on interstate commerce. The Court found that Mr. Filburn was affecting interstate commerce by growing his own wheat, and therefore reached the astounding conclusion that he was engaging in interstate commerce by not engaging in interstate commerce! With one stroke of a pen the Court obliterated all limits to the power of the federal government.

If there is any question about what the Supreme Court meant, this statement in U.S. v. Wrightwood Dairy Co resolved them: “The commerce power is not confined in its exercise to the regulation of commerce among the States.” The Court made a virtually identical statement in U.S. v. Darby. Remember, the Constitution allows Congress to regulate “commerce among the several states.” The Supreme Court says that authorizes Congress to regulate things which are not interstate and which are not commerce. Only a lawyer could dream up such a thing.

Congress has responded by passing laws regulating drugs, child labor, the minimum wage, discrimination, sexual harassment, the environment, endangered species, criminal law, civil rights, and many, many other subjects. Carjacking is now a federal crime. Rape and arson can be federal crimes, and so can fleeing the state to avoid paying child support. You face up to ten years in federal prison for simply possessing a gun while under a routine order of a divorce court. The Army Corps of Engineers even tried to define “navigable waters” to include any water that provides habitat for migratory birds, bringing mud puddles under federal control. The rationale was that birds affect interstate commerce. I guess if a bird flies over it, the government can regulate it.

The debate is not whether these are good laws. The only question is whether Congress is acting within the limits of the Constitution, or simply doing whatever it wants because there is no one there to stop it.

U.S. v. Lopez, 514 U.S. 549 (1995) was the first bright light in seventy years. In 1990 Congress passed a law that prohibited anyone from possessing a gun within one thousand feet of a public or private school. Congress justified this gun control law because at some time in the past the gun traveled in interstate commerce. Somehow regulating something that decades ago was a part of interstate commerce is the same thing as regulating interstate commerce.  The government argued in favor of the law, relying on Wickard and similar cases which allowed Congress to regulate anything that has a substantial effect on interstate commerce.

The Supreme Court found the law unconstitutional, holding that it exceeded Congress’ power under the Commerce Clause. The Court said, "Under the theories that the Government presents in support of 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Lopez was the first case in 70 years to invalidate a federal law made under the Commerce Clause. Unfortunately the federal Courts of Appeals do not seem to have gotten the message. Virtually all of the lower courts that have applied the ruling in Lopez have said in essence that all Congress has to do is mention interstate commerce in the statute and the inquiry ends there.

U.S. v. Morrison, 529 U.S. 598 (2000) is another ray of hope. Unfortunately it’s the only other example in almost seventy years. In Morrison the Supreme Court declared unconstitutional a law that made it a federal crime to commit any act of gender-motivated violence. This law was called the Violence Against Women Act.

The Court explained: "We accordingly reject the argument that Congress may  regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. . . Indeed, we can think of no better example of the police power,  which the Founders denied the National Government and  reposed in the States, than the suppression of violent crime  and vindication of its victims." In Lopez and Morrison the Court recognized that the Commerce Clause cannot possibly allow Congress to regulate anything that affects interstate commerce, or there would be nothing on the face of the planet that would be beyond Congress’ power.  The Commerce Clause must be in the Constitution for a reason. If the Founders felt Congress could do anything it wants, they could simply have said so.

So now “interstate commerce” does not include only interstate commerce. It also includes things which are wholly in-state and things which do not in any way involve commerce. Not engaging in commerce constitutes engaging in interstate commerce. Congress can even travel backwards in time, finding that an effect on interstate commerce (an item traveling in interstate commerce) can occur decades before the cause (a person possessing that item long after it had ceased its travel). One doesn’t even have to affect commerce at all in order to be found to have engaged in interstate commerce. The only way the Court could have been more straightforward would be to say:

We know the Constitution says the federal government can regulate interstate commerce. We know that most of the things Congress does have nothing to do with interstate commerce and are therefore illegal. But we don’t want to do anything that might make Congress mad, so we are just going to ignore the Commerce Clause and let Congress do whatever it wants. We’re going to put something down on paper, so we’ll just make something up. Let’s just say “interstate commerce” means “everything under the sun.” After all, we’re the Supreme Court. We’re the court of last resort, so what we say goes. We don’t really have to give you an explanation, because we are appointed to the Court for life. But if you absolutely insist on an explanation, then it’s gonna be this way “Because we said so.”

Congress uses the Commerce Clause to justify at least half of everything it does. Imagine what life would be like today if the Court in 1937 had said:

Are you kidding? Sitting on your farm wanting to be left alone is interstate commerce? This is the single biggest load of crap we’ve ever seen. This law goes way beyond any conceivable stretch of Congress’ power. What the hell were you thinking? We hereby ORDER every member of Congress to read the Constitution from cover to cover. Obviously you haven’t yet done so. Don’t ever test our patience by sending us anything remotely like this in the future. If you do, we’ll have you all thrown in prison for abuse of power.

How much lower would your taxes be if the Court would call a spade a spade? How much more influence would you have on your government if these laws were debated in Austin instead of Washington? Remember, this is exactly what the Tenth Amendment guarantees.

Madison said in Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The Supreme Court itself said in Gregory v. Ashcroft, 501 U.S. 452 (1991), “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

Obviously, the Members of Congress and the Justices on the Supreme Court are not stupid people. They have to know the Court’s limitless definition of “interstate commerce” is nothing but a transparent lie for the sole purpose of granting more power to the federal government. The Founders intended the Supreme Court to be your last line of defense against tyranny. What do you think James Madison and the other Founding Fathers would do if he learned that a vast, omnipotent federal government had been created based on a patently false interpretation of single obscure clause of the Constitution? I guess we know how the Founders would react to tyranny. We’ve been down that road once.

If I remember right, it’s the Constitution and not the Supreme Court that is supposed to be the “supreme law of the land.” But in the last seventy years we’ve let the Supreme Court whittle away at the Constitution to the point where it means only what those nine judges say it means, no more and no less. Lopez and Morrison give us some hope, but both were 5 - 4 decisions. We will have to trash almost seventy years of “legal fiction” in order to restore any real meaning to the Constitution. The first step, and maybe our last hope, is to insist on judges who respect what this country stands for.

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