Claiming Almost Everything is “Commerce”

Claiming Almost Everything is “Commerce”
Posted on 20 July 2009

by Rob Natelson

How can Congress get around the Tenth Amendment and regulate almost every aspect of American life?

One way is by claiming that the Tenth Amendment doesn’t apply because Congress is merely acting within the scope of its enumerated powers. But to make this claim, one must assume that some of the enumerated powers are much broader than they really are.

One of the enumerated powers cited by advocates of the modern monster-state is the Commerce Power. This derives primarily from two sources:

(1) the Constitution’s grant to Congress of authority to “regulate Commerce . . . among the several States” and

(2) the Constitution’s grant to Congress of authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers. . .”

According to promoters of the monster-state, those constitutional phrases go further than allowing Congress to regulate trade among the states. They also allow Congress to control manufacturing, wages, agriculture, crime, mining, land use, firearm possession, and a range of other activities.

How can they justify this? Basically, they make two arguments. The first argument was spun during the New Deal by a University of Chicago law professor. (Too many law professors spend entirely too much time fabricating constitutional theories to promote big government.)

This professor argued that during the Founding Era the word “commerce” meant more than trade. Instead, he contended, “commerce” included all gainful economic activities. Hence Congress has a license to regulate the entire economy.

An even broader version of this theory was published more recently by a Yale law professor. He maintains that “commerce” means any human interaction – so the federal government can regulate almost anything, so long as it doesn’t trample one of the specific guarantees in the Constitution, such as Free Speech.

On investigation, however, the claim that “commerce” meant “all gainful activities” or “all interactions” turns out to be completely untrue. It flies in the face of much of what we know about the Founding Era, including specific representations by leading Founders that most regulation would be reserved to the states.

But because it is sometimes necessary to prove the obvious, several other academics (such as Georgetown University’s Randy Barnett and I) have examined literally thousands of appearances of the word “commerce” in the historical records from the Founding Era. And those records show clearly that “Commerce” in the Constitution means trade and associated activities, but no more (e.g., http://www.umt.edu/law/faculty/natelson/articles/Commerce%20Clause.pdf).

The second argument for an almost unlimited Commerce Power currently prevails on the U.S. Supreme Court. (Don’t let anyone tell you the present court is “conservative” on such matters.) This argument acknowledges that when the Founders wrote “Commerce,” they meant only trade and a few allied activities, such as navigation.

But it goes on to say that modern economic life, unlike life during the Founding Era, is highly interdependent, so it is now “necessary and proper” for Congress to regulate everything that substantially affects commerce.

But this argument also ignores history. Economic interdependence is nothing new: the promoters of the Constitution themselves emphasized it. But they also assured the public that, interdependent or not, most activities could be regulated only by the states.

They added that the Necessary and Proper Clause added nothing to federal authority, but merely clarified that the legal “doctrine of incidental powers” applied to the Constitution. And no power could be “incidental” if its scope swamped the principal power. In other words, Congress couldn’t take over a big field like manufacturing or agriculture on the pretense of regulating commerce.

If the Supreme Court were doing its job in this area, it would restrict Congress to the authority granted by the people through the Constitution. Because the Court is not doing what it should, it is up to the people to recall the federal government to its constitutional limits.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar. (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.

Tags:
Allegations, Citizens For Responsibility, Citizens For Responsibility And Ethics, Citizens For Responsibility And Ethics In Washington, Congressional Ethics, Ethics Rules, Financial Impropriety, House Speaker Nancy Pelosi, Incoming House Speaker Nancy Pelosi, Lawmakers, Melanie, Member Of Congress, Nancy Pelosi, Sexual Misconduct, Sloan, Speaker Nancy Pelosi, Swamp, Wrongdoing, Election Challenge, General Election, Important Magazine, Kay Bailey Hutchison, Paul Burka, Rick Perry, Texas Governor, Texas Monthly, X92, Army, Defense Secretary, Doctors, Fort Hood, Inappropriate Behavior, Information Gathered During, Islam, Medical Training, Nidal, Pentagon, Pentagon Investigation, Performance Evaluations, Psychiatrist, Rampage, Robert Gates, Secretary Robert, Superiors, X27,
Alaska Native, Answer Choices, Census Bureau, Complexion, Controversy, Doles, Federal Government, Money, New Decade, One Question, Stanley, U S Census, U S Census Bureau, X27,
C Span, Choice Act, Closed Doors, Congressional Leaders, Health Care Bill, Members Of Congress, Public Discourse, Secrecy Scheme, Voices, X92, Global Economy, Youtube, Glenn Beck, Fox News, Tom Coburn, Jim DeMint, Mitt Romney, Mike Huckabee, Drudge Report,

Big Losers, Campaign Platform, Campaign Pledge, Family Farmers, Farm Subsidy, Federal Taxpayers, Immediate Release January, January 6, Loopholes, National Sustainable Agriculture, Subsidy Payment, Sustainable Agriculture Coalition, Washington D C, X96, 22 Years, Advocacy Groups, Foreigners, Hiv, Hiv Infection, Hiv Status, Hiv Test, Immigrants, Immigration Advocacy, Last Monday, Medical Examination, Permanent Residents, Term Visitors, United States, Visa Application Afghanistan Al Qaeda Amp Barack Obama Christmas Christmas Day Climate Change Cnn Congress Copenhagen Democrat Democrats Economy Fort Hood Global Warming Gop Harry Reid Health Care Health Care Bill Health Care Reform Insurance Israel Job Jobs Legislation Money Nidal Obama People Recession Republicans Reuters Sarah Palin Senate Terrorists United States Backlash, Budget Reconciliation, Government Seed Money, Health Care Bill, Health Care Bills, Health Insurance, Health Insurance Option, House Democrats, Joe Lieberman, Liberal Democrats, National Public Health, Progressive Democrats, Promising Area, Provision States, Public Health Insurance, Public Money, Public Options, Senate Bill, State Money, Unanswered Question Bill Thomas, Chairman Bill, Commercial banks, Congress, Consequences, Depression Era Glass, Financial Crisis, Financial Markets, Glass Steagall Act, Inquiry Commission, Investment Banks, Investments, Last Spring, One Thing, Public Hearings, Rundown, Senate, Wikipedia Bloggers, Campaign Season, Center For Responsive Politics, Chief Executive, Citizens, Edward Kennedy, Election Year, Federal Campaign, Governorships, Lawmakers, Legislation, Member Of Congress, Mud, Opencongress, Personal Reasons, Retirement Announcements, Retirements, Senate, Swing State Project, Voting Records Advocacy Group, Body Mass Index, Cholesterol Level, Group Health Care, Harvard Health, Health Care Bill, Health Care Reform, Health Insurance Portability, Health Insurance Portability And Accountability Act, Health Policy Expert, High Cholesterol, Incentives Program, Legislative Text, New England Medical, New England Medical Journal, Pre Existing Medical Conditions, Progressive Health Care, Reform Advocacy, Senate Bill, Senate Health Cadillac, Dayen, Economic Policy Institute, Excise Tax, Health Care Bill, Health Care Bills, Health Plans, House Democrats, House Dems, House Of Representatives, Insurance Plans, Joe Courtney, Middle Class, Priority Health, Progressives, Senate Bill, Senate Health, Signatures, Surtax, Union Members Appropriations Bills, Earmarks, Federal Spending, Fiscal Year, Legislation, Members Of Congress, Pet Projects, Taxpayers For Common Sense, Usa Today, Watchdog Group Banking Committee, Banking Industry, Career Path, Chairmanship, Connecticut Voters, Constituency, Consumer Protection Legislation, Dodd, Dorgan, Early Retirement, Last Spring, Legislative Agenda, Lobbyist, Mortgage Market, Reform Legislation, Regulatory Reform, Retirement News, Retirement Plans, Retirements, Senate Democrats Attorney General Richard Blumenthal, Bailout, Beneficiary, Blush, Byron Dorgan, Chris Dodd, Democratic Hopefuls, Democratic Nomination, Joe Lieberman, Loan Scandal, Mortgage Deal, Outrage, Rising Star, Scandals, Senate Banking Committee, Senate News, Senate Seat, Sidenote, State Attorney General, Target Greg Abbott, Republicans,
Michael Steele, Nebraska Compromise,
Harry Reid, Abbott wrote in a letter Tuesday to U.S. Sens. Kay Bailey Hutchison and John Cornyn, both Texas Republicans
John Cornyn,
Trent Lott, Apology, Bureaucratic System, Dozen Other States, Half A Dozen, James Webb, Jim Webb, Mark Warner, Medicaid, Medicaid Enrollment, Medicaid Rolls, Mr Webb, People, Senators, Sens, State Budget, Tough Talk, True Reform, Virginia Medicaid, Virginians, X27 Limbaugh Institute, Live Radio, Microphone, Radio Show, Rush Limbaugh, Rush Radio,
Jon Kyl, Game Change
Race,