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The Limits of the Commerce Clause

[ 26 ] December 15, 2010 |

Radley Balko asks:

Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

Well, I don’t really see the Bill of Rights as a mere aside; these limitations are very important. But that said, to play the mild contrarian I don’t actually have any objection to U.S. v. Lopez. When a statute is not a regulation of economic activity, has no jurisdictional hook, has no necessary connection to a broader regulatory regime, and Congress can’t be bother to explain what the connection to interstate commerce is or why federal action is necessary…I don’t really have a problem with the Supreme Court ruling the statue as beyond Congress’s authority. And while I disagree with United States v. Morrison, this is primarily because I strongly reject the narrow conception of Congress’s enforcement power under Section 5 of the 14th Amendment. I have no problem saying that the commerce clause limits federal ability to intervene in purely local crime enforcement.

Now, I assume the libertarian response will be that this isn’t much, and…this is right. I don’t think in a modern industrial economy there’s any point in the Supreme Court trying to make distinctions between “local” and “national” economic regulations.

One thing I would add, though, is that saying that the Court should not strike down economic regulations under a narrow interpretation of the Commerce Clause is not to say that the power of Congress is unlimited. As many of you know, Madison did not feel that “parchment barriers” were the most important protection against excessive government. Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy. I think these limits are (more than) sufficient, and having the courts try to apply a conception of economic powers more meaningful in an 18th-century agrarian economy doesn’t make any sense.

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Comments (26)

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  1. wsn says:

    I think this relates back to your point about judicial reasoning.

    People sure seem to like process/rules analysis that comports with their substantive views…

  2. Joe says:

    The “necessary and proper” clause and the overall principles of McCulloch v. Maryland suggests that “proper” includes not violating certain rights, state powers or some basic constitutional norms. So, I don’t think the BOR is an afterthought though it does help with the “where’s the stopping point” business. It after all limits the commerce power rather significantly.

    I concur with Scott here basically. (1) Madison thought political limits — ridiculed by some opponents here putting aside the law is narrower for that very reason — a major protection of liberty. (2) I think Lopez is good law and that it suggests various limits. The means/ends requirement is not quite as loose as some opponents’ simplistic summary suggests.

    But, (3) the power is still broad. Still, I don’t think the law in question really does anything really intrusive. The Civil Rights Act was much more intrusive than “forcing” someone to get what many have or requiring them to pay a small tax (call it a penalty, if you want) that helps pay for things they or others will use.

    So, there are many limits, but the polls remains a major one. I don’t see the problem.

  3. Brad Potts says:

    Why do you do this to me Scott?

    I’m going to post a more thorough comment when I have time to compose my thoughts better.

    I will have to say that, in light of the other comment thread, that your opinion on what effects interstate commerce and what doesn’t is extremely arbitrary.

    Bringing a gun to a school is a far more egregious disruption of the enjoyment of a public good than not buying health insurance.

    I think that is the central point: libertarians tend to look at everything in terms of economics. The basic indisputable right of libertarianism is self-ownership, so libertarians understand their entire philosophy as being based upon an economic activity: claiming and possessing one’s own value.

    So when a libertarian hears your argument, they are going to be like me and think, “Nope, he doesn’t believe in any limitations.”

    • Joe says:

      When you clarify your thoughts, it might help to recall that “the enjoyment of a public good” is not the immediate issue, the issue is the limits of the Commerce Clause.

      Since “everything isn’t economic” under that document, this comment does flow back to a comment made once “I don’t care about the Constitution.”

      And, since “any limitations” includes lots of stuff Scott clearly thinks is not allowed, the fact you think his reasoning is “arbitrary” doesn’t really answer him on that point.

      A libertarian might not think limits arising from the 1A or the 5A (e.g., sale of religious materials or abortions) is of equal value as some other things like wages, but it still underlines lots of “limits” are involved. They just are allegedly “arbitrary” in some fashion.

      Again, the Constitution not just a libertarian document, not caring about it helps.

    • wsn says:

      The basic indisputable right of libertarianism is self-ownership…

      “Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding the whole number of free persons, [. . .], three-fifths of all other persons.”

      I think that is the central point: libertarians tend to look at everything in terms of economics.

      Right. And Scalia evaluates legal disputes in originalist terms. And in both cases they just so happen to produce substantive results desired beforehand. Quite the coincidence!

      So when a libertarian hears your argument, they are going to be like me and think, “Nope, he doesn’t believe in any limitations.”

      So your argument is that libertarians as a group lack basic reading comprehension?

    • Scott Lemieux says:

      Bringing a gun to a school is a far more egregious disruption of the enjoyment of a public good than not buying health insurance.

      Perhaps, but the question is whether it’s an economic action.

      • Brad Potts says:

        Perhaps, but the question is whether it’s an economic action.

        Let me list the ways:

        1. It raises the costs of maintaining public education, thereby forcing taxpayers to pay more.

        2. It disrupts state and federal curriculum.

        3. It endangers the lives of teachers and administrative workers.

        4. It raises the legal and insurance costs of keeping the school and government as a whole operating.

        5. It disrupts the other students decidedly economic activity of learning.

        6. It increases the costs of gun ownership by raising public awareness of their danger.

        At this point you have basically made every and any activity to fall under the jurisdiction of the commerce clause. I can’t say this anymore plainly: libertarians view society as a market. Mises considered economics to be the study of human behavior and preference. So when you say that not buying insurance can be economic activity because of the ramification it has on prices, markets, and others enjoyment of health care services, the libertarian sees that as including all activity.

        Any and all personal behavior has economic effects, and any and all personal behavior writ large has profound public effects. Therefore the libertarian would tend to believe that your only qualification would be whether or not the prescribed behavior serves the public good.

        I do appreciate that you consider other protections might exist to stop bad and oppressive law, but considering that “the common good” is the basic justification for getting around the first, second, fourth, fifth (and I am sure eventually the third) amendments, I think that the welfare and warfare proponents have created a catch-all justification for just about any government power.

        • Scott Lemieux says:

          Well, yes, another possible argument for the statute was that, while it didn’t regulate economic activity per se, it indirectly impacted the economy. But when it’s not an economic activity per se, Congress has to have some plausible argument that the effects are large and that the local authorities were unable to deal with the problem. They didn’t.

        • Joe says:

          “catch-all justification for just about any government power”

          but somehow, though you never want to admit it, said justifications do not allow “any government power” to be allowed. In any number of areas, the power is restrained by public pressure or court action. And, whatever libertarians believe, again, the Constitution is not set up in such a “one box” way. But, you don’t really care about the Constitution at the end of the day, but good policy. Since the former is the issue at hand, well, you have a problem. I also think Scott’s reply a good one.

  4. Steve H in SLC says:

    Don’t even libertarians accept that the government has the constitutional power to draft me, send me to war, and then basically order me to die in battle?

    The intrusiveness of a federal government power to require me to buy health insurance pales in comparison.

    Anyway, before this became a big Republican cause, was there anyone out there who was actually opposed to having health insurance?

    • DrDick says:

      If I recall correctly, as it was almost 40 years ago, the government actually did draft me, though they did not succeed in sending me off to kill and be killed. The notion that the mandate is an unconstitutional overreach is rather absurd on its face.

  5. rea says:

    Putting aside what’s codified Bill of Rights . . . do you believe the Constitution puts any restrictions on the powers of the federal government?

    Well, sure! First of all, there are plenty of enforceable rights not codified in the Bill of Rights. Second, there are a lot of areas in which the states are the primary lawmakers, and the feds can interfere only for narrow limited purposes. Marriage, property law, tort law, contract law, health and safety regulations, police and fire protection, schools, criminal law, traffic regulations, etc. That’s not to say that the federal government can never act in these areas–but its power to act is limited. Note in particular, that the one almost unlimited power of the federal government is to spend money on “the general welfare.” A lot of federal “regulations” in these areas are really conditional grants of money.

  6. Roger Ailes says:

    Eh, if the Constitution sans Bill of Rights is all about limitations on the federal government’s powers, why do you need a fucking Bill of Rights?

    Of course, the first three articles are chock full of restrictions on the federal gubmit. No bill of attainder or ex post facto Law shall be passed. No bench trial in criminal cases. &c. Does Balko expect us to read the fucking thing to him?

  7. IM says:

    Suspension of habeas corpus and so habeas corpus is directly in the constitution.

    I always understood that the bill of rights was the price the federalists had to pay for more federal power and so is part of the original constitutional compromise.

  8. Pithlord says:

    I’m surprised and heartened that this is your opinion.

    I suspect all you need for a functioning welfare state is the spending power. Healthcare, including effectively a mandate, could have been done just with the ability to tax and spend.

    Mostly, it is business interests that most want national regulation. There is rarely any good reason to provide for national criminal law.

    • Brad Potts says:

      You have earned yourself another blog reader, Pith. I really do enjoy your comments.

    • Joe says:

      If you actually took away all the other powers, including over commerce, I do wonder just how useful just spending will be.

      The law itself here focused on the Commerce Power, including its findings (nearly never cited by these blog discussions for some reason), underlining the continuing importance of an interlocking scope of constitutional power (and rights for that matter). Theory aside, the commercial connection is an important part of the political dynamics here.

      The last two sentences are put together as if they are connected, but they are not. Also, it’s patently false. The people overall want regulation. They want clean air, protection from discrimination, protection from business abuses, voting rights etc. These sometimes require criminal law. Experience has shown local law is not enough here. So, it’s also “good” on policy grounds too.

  9. Brad Potts says:

    Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy.

    I have to ask: Which of the veto points within our political institutions are not controlled by a small portion of the wealthy elite?

    I have already expressed that I don’t have much faith or love for the “parchment barrier”, but as a libertarian I have no faith in the political institutions either.

    • Joe says:

      If they have “control” it is far from total and they have the same or more (I take the latter) control of the stuff you think the government is wrongly regulating. Why private wealthy elite control is supposed to be less scary since at the very least there is some ways for non-elites to have some real power over the electoral processes or via constitutional rights (“parchment barriers”) where independent federal judges repeatedly have decided against the “wealthy elites” because of their dictates.

      • Brad Potts says:

        My point was to show that the institutional checks Madison preferred are not much more powerful than a “parchment barrier”.

        You haven’t said anything that would say otherwise.

  10. rea says:

    There is rarely any good reason to provide for national criminal law.

    Counterfeiting? Treason? Assasination of federal officials? Piracy on the high seas?

    • rea says:

      To amplify, what always strikes me about these types of arguments is in most circumstances the line between state and federal authority is clear, uncontroversial, and works well in practice. Nevertheless, whenever these issues come up, you always get these sweeping extremist statements like, “There is rarely any good reason to provide for national criminal law,” or “you [don't] believe the Constitution puts any restrictions on the powers of the federal government,” all based on the few isolated instances in which the dividing line is unclear. It all sounds like crazy talk to a practical litigator . . .

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