The listing of powers granted Congress by the Constitution is clearly intended to have a limiting effect. The framers were saying, "this far and no farther."
Or else ... why bother? If they had wanted any of the powers to serve as a blank check, they could have included only that one. "Congress will do whatever the heck it thinks best." You only need one blank check, not a long list of them.
Thus, it is axiomatic that none of the "enumerated" powers (a traditional though odd expression -- they weren't literally numbered in the text!) is supposed to be universal in its scope.
I have always felt rather embarrassed on behalf of the Supreme Court as an institution by its decision to turn the commerce clause into the blank check power. Wheat grown on a farm, baked into bread and consumed on that very farm (and thus of course in the same state) was held in Wickard v. Filburn to be a matter of interstate commerce. You can read the decision here if you please.
The gist of it is that the wheat is "in marketable condition" (which doesn't seem to require more than that it be edible), thus it "overhangs the market." If prices had risen high enough, the farmer could have been tempted to sell it.
But even if it it isn't ever marketed, the court's decision continues, "it supplies a need of the man who grew it" which might otherwise have been supplied by buying from someone, thus affecting the stream of commerce in wheat which crosses state lines.
Such absurd special pleading is, as I've indicated, embarrassing to contemplate.
At any rate, I have long regarded most evidences, even small ones, to the effect that the court may be willing to put limits on (or back on) the scope of the commerce clause as intellectually and judicially heartening developments.
When I was in law school, in the early 1980s, the most recent decision that seemed to argue that there still or again were such limits was National League of Cities v. Usery (1976). That declared that the Fair Labor Standards Act didn't apply to certain of the employees of states and municipalities. This was because the interstate commerce power, the power on behalf of which the fair standards act was itself legitimated, copuld not be constued so as to take control of "functions essential to separate and independent existence" of the states.
That didn't last, though. National League of Cities was overturned (three years after I graduated from law school) in Garcia v. San Antonio.
So it was back to the blank check.
In 1995 came something more promising, U.S. v. Lopez. The court by a 5-4 vote held that regulating "commerce" does not extend to the regulation of the carrying of handguns. Rehnquist doesn't question Wickard here, but contends that it is consistent with the exercise of judicial scrutiny of a law to determine wherher a rational basis exists for the presumed legislative conclusion that the regulated activity sufficiently affects interstate commerce.
In the abstract, one can of course say that guns in or near schools could affect the learning environment, renderingt he next generation of producers and interstate traders less competent in reading, writing, and arithmetic, harming commerce. That sounds a lot like the equally abstract argument about what consuming one's own wheat could do. Rehnquist was insisting, as I understand Lopez, that Congress make a specific factual case.
I had my mind on Lopez and the trend I see it as representing when I predicted to friends prior to the SCOTUS decision this term that the insurance mandate would be struck down. Further, if that went, I thought that other portions of the law, inextricably intertwined with it, would also fall. The requirement that insurance companies accept pre-existing conditions only becomes rational (and could only have been enacted) beause the insurers were in another respect getting a subsidy through the mandate: and that is how severability doctrine works. So those points, I presumed, would rise and fall together although much else would be severable and saved.
The bottom line? I see some merit in the portion of Roberts' decision dealing with the commerce clause, though he eliminated most of that merit by rendering it all a detailed obiter dictum.
Or else ... why bother? If they had wanted any of the powers to serve as a blank check, they could have included only that one. "Congress will do whatever the heck it thinks best." You only need one blank check, not a long list of them.
Thus, it is axiomatic that none of the "enumerated" powers (a traditional though odd expression -- they weren't literally numbered in the text!) is supposed to be universal in its scope.
I have always felt rather embarrassed on behalf of the Supreme Court as an institution by its decision to turn the commerce clause into the blank check power. Wheat grown on a farm, baked into bread and consumed on that very farm (and thus of course in the same state) was held in Wickard v. Filburn to be a matter of interstate commerce. You can read the decision here if you please.
The gist of it is that the wheat is "in marketable condition" (which doesn't seem to require more than that it be edible), thus it "overhangs the market." If prices had risen high enough, the farmer could have been tempted to sell it.
But even if it it isn't ever marketed, the court's decision continues, "it supplies a need of the man who grew it" which might otherwise have been supplied by buying from someone, thus affecting the stream of commerce in wheat which crosses state lines.
Such absurd special pleading is, as I've indicated, embarrassing to contemplate.
At any rate, I have long regarded most evidences, even small ones, to the effect that the court may be willing to put limits on (or back on) the scope of the commerce clause as intellectually and judicially heartening developments.
When I was in law school, in the early 1980s, the most recent decision that seemed to argue that there still or again were such limits was National League of Cities v. Usery (1976). That declared that the Fair Labor Standards Act didn't apply to certain of the employees of states and municipalities. This was because the interstate commerce power, the power on behalf of which the fair standards act was itself legitimated, copuld not be constued so as to take control of "functions essential to separate and independent existence" of the states.
That didn't last, though. National League of Cities was overturned (three years after I graduated from law school) in Garcia v. San Antonio.
So it was back to the blank check.
In 1995 came something more promising, U.S. v. Lopez. The court by a 5-4 vote held that regulating "commerce" does not extend to the regulation of the carrying of handguns. Rehnquist doesn't question Wickard here, but contends that it is consistent with the exercise of judicial scrutiny of a law to determine wherher a rational basis exists for the presumed legislative conclusion that the regulated activity sufficiently affects interstate commerce.
In the abstract, one can of course say that guns in or near schools could affect the learning environment, renderingt he next generation of producers and interstate traders less competent in reading, writing, and arithmetic, harming commerce. That sounds a lot like the equally abstract argument about what consuming one's own wheat could do. Rehnquist was insisting, as I understand Lopez, that Congress make a specific factual case.
I had my mind on Lopez and the trend I see it as representing when I predicted to friends prior to the SCOTUS decision this term that the insurance mandate would be struck down. Further, if that went, I thought that other portions of the law, inextricably intertwined with it, would also fall. The requirement that insurance companies accept pre-existing conditions only becomes rational (and could only have been enacted) beause the insurers were in another respect getting a subsidy through the mandate: and that is how severability doctrine works. So those points, I presumed, would rise and fall together although much else would be severable and saved.
The bottom line? I see some merit in the portion of Roberts' decision dealing with the commerce clause, though he eliminated most of that merit by rendering it all a detailed obiter dictum.
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