Attorney and frequent commenter Donald Quigley sends along this interesting bit of analysis regarding a Tenth Circuit Court decision that effectively does to the Commerce Clause what Kelo did for takings and eminent domain—namely, extended it to the point where there is no longer any logical constraint on its power. Writes Don:
You may recall a series of BS Supreme Court decisions (e.g. Wickard, Raich) in which purely intra-state activities were held to be within the federal Commerce Clause power because of their supposed “aggregate effect” on inter-state commerce: if you hadn’t bought it locally, you would have bought it inter-state, so there’s an effect on price.
Following on those decisions, the Tenth Circuit today upheld, as within the federal government’s Commerce Clause power, a federal law making it illegal to produce pornography using items previously purchased in interstate commerce—i.e., a camera. This law was enacted to close a “loophole” that previously required that the defendant intended to sell the pornography in interstate commerce; it was an unabashed attempt to go beyond that Commerce Clause limitation in the greater service of the war on porn.
One the one hand, it is not surprising that none of the judges had the stones to uphold the Constitution here, given the egregious facts of the particular case: the prosecution alleged that a 13-year-old girl was drugged into unconsciousness and then raped on film by a Mexican (implied: illegal) immigrant.
On the other hand, once you accept the principle that the Commerce Clause power extends to things that you do with goods previously purchased in interstate commerce, then there is no limit. Just apply the Wickard/Raich “aggregate effect” rationale to those previously-purchased items themselves: even if the goods you used were purchased in intra-state commerce, that too has an “aggregate effect” because you could have purchased them inter-state. So add these together and you get: anytime you use any goods or services—whether purchased intra-state or inter-state—to produce any other goods or services—whether or not sold or intended to be sold in inter-state commerce—this activity is within the Constitutional limits of federal power. In other words, the Commerce Clause has entirely ceased to operate as a limit on federal power.
What’s egregiously stupid about this is the economic pseudo-analysis the courts employ: it the price of the “bad thing” falls, that’s bad because more people can afford it so there will be more of it; if the price rises, that’s bad because it will attract more producers into the market; if demand rises, that’s bad because more will be produced; if demand falls (e.g. because of intra-state production and consumption), that’s bad because then there will be a glut on the market leading to lower prices leading to increased demand leading to increased prices leading to increased production, etc. But I guess the Commerce Clause is the last place you would want to employ rational economic analysis…
Don points out that the Court, following on Wickard and Raich (and it worth noting here that I was happy to blast Scalia on Raich, and that I have similar concerns over Roberts’ exuberance for the Commerce Clause) have effectively made the Commerce Clause power of the Federal government universal; that is, there are no longer any conditions under which commerce cannot be at least potentially inter-state—BEYOND INTENT TO USE IT AS SUCH—which seems, from this ruling, is the new standard.
The analogy I see to Kelo is best brought out in Justice O’Connor’s dissent, which essentially argued that, as Justice Thomas notes in his dissent, “If such ‘economic development’ takings are for a ‘public use,’ any taking is, and the Court has erased the Public Use Clause from our Constitution.”
Similarly, it seems to me, such an extension of the Commerce Clause as is evident in the Tenth Circuit’s ruling relies on thinking that makes constraint theoretically impossible.
Judicial activism can happen from both political poles. In Raich, it was my opinion that Scalia worked backwards from his anti-drug stance and massaged the Commerce Clause to the point that, with Wickard, we now have unchecked Federal power over commerce; in Kelo, Kennedy provided the government with potentially unchecked power as pertains to the seizure and transference of private property—though a move is afoot to counter that with new legislation that would in fact constrain municipalities by penalizing them for eminent domain overuse.
Of course, I’m not a lawyer or a legal scholar, so I could be way off on this. But for now, I’ll stand by the analogy until somebody sets me straight and points out to me how the Courts are showing fealty to the Constitution.
****
update: Don emails, “having now read the footnotes, it looks as though other circuits had already ruled this way […] So this isn’t totally “breaking” news, but it’s still new in the 10th Cir. where you and I live.”
Since Kelo, we are all living on government property. Until the legislatures catch up (assuming they want to), we are only stewards of government property which that government can take any time it wants for any purpose it wants and for (virtually) any price it feels like paying. This is the end of private real property in America.
The decision you discussed completes the circle by subjecting any use of any property (whether bought, made, or even just found) to review by the government.
Add the irrestible drive toward diversity and hate/thought crimes legislation, church/state separation, and how far are we really from the government controlling essentially every facet of our lives (or at least subjecting it to review).
1984 may be past, but in some ways it’s starting to look at lot like 1983.
That’s true, but it’s been true since about 1937. (Thanks FDR, may you rot in Hell!)
It’s not surprising that the power of the federal government has grown steadily. After all, we have a system where federal government gets to decide for itself how much power it has.
It doesn’t make headlines any more, but this whole problem can be traced, in part, to 1913 (the blackest year in US history, from a conservative’s point of view). That was the year that we amended the Constitution to allow for the direct election of senators. Before that, senators were elected by State legislatures.
As it stands now, there is no one in the federal government arguing for the position that the feds should have less power.
Another long-forgotten idea that kept these abuses in check was that States could refuse to enforce federal laws that exceeded its delegated powers. Sort of a State-veto. State nullification.
This is what Jefferson was talking about in the Kentucky Resolutions of 1798—that the States never agreed to “submit to undelegated, and consequently unlimited powers.”
He went on to declare that “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right … to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”
The Civil War pretty much put an end to that idea, though.
How depressing.
CIVIL WAR II: This Time it’s Colorblind
Does the state of Utah not have laws against drugging and raping 13 year old girls?
I’ve been making similar comments over at this DailyPundit thread regarding the aggregate effect with campaign finance reform laws and free speech. Except there I call it the grain of sand theory.
“People like me look at this law, and then read the constitution and say… there is no way this is constitutional. Its blatent. It’s obvious.
ConLaw lawyers look at this law, then look at years of case law and precident that have built up over 200 odd years and say, this is fine. They’re looking at a pile of sand that has been heaped on top of the constitution over that time. I fear that this sort of law will be kept as constitutional for that reason.
At some point in time, we have to look at that heap of sand and say its covering up the most important base of all time, and we need to brush it away to uncover the original document again.”
Yeah, tell me about it.
Stranger things have happened. Carrot Top having a career, for example.
Phinn is correct about the deleterious structural effects of the 17th Amendment; but I think he materially overstates things when he says it’s been like this since the Roosevelt era. That era certainly saw a vast and legally-unjustified expansion in the reach of the Commerce Clause, but until now one at least had to pretend that the prohibited activity could in itself theoretically have some effect upon interstate commerce. This latest development removes that last remaining restraint.
Essentially in time, all rights are taken away, all goodS come under Federal control, all property belongs to the STATE…..and the UN controls the the internet…
“BECAUSE OF THE CONSPIRACY”!!!!!!!!
Sounds too extreme?
Hate to be nitpicky, Jeff…
To be fair to Scalia, he doesn’t reason backward from his anti-drug stance, assuming he has one.
See National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).
From Scalia’s dissent in this case, which upheld a drug-testing program against a Fourth Amendment challenge:
“I decline to join the Court’s opinion in the present case because neither frequency of use nor connection to harm is demonstrated or even likely. In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.”
Hmmm.
And people wonder why I’m so frigging pissed off about Miers?
Christ on a crutch.
I think that the remedy, here as with the Kelo decision may lie in legislation, both from the states and from Congress. But I’m no lawyer either.
On a deeper historical level though, what I think that we have been witnessing here and elsewhere is the slow inexorable creep from a republic to an empire, much as happened in Rome. Youcan draw your own analogies. What seems obviously unconstitutional now, will be taken for granted in the decades to come, unless the legislatures act to prohibit it. It also seems that power always tries to acquire and concentrate more power. Just some passing observations.
Ultimately, how we, the electorate react will have an effect. If we are active & engaged and the word is spread and people react by writing to their legislators, this could be avoided. If we simply acquiesce, then the creep continues. Fighting the creeping concentration of power seems to be a constant battle in any free society.
While these court decisions, which I agree are bad, seem to concetrate more power in the federal government, I think that our fate is still ultimately in our hands.
The number of federal laws struck down since 1937 on the grounds that Congress exceeded its power under the Commerce Clause: 2 (both in 1996).
Thanks Jeff. My head wants to explode every time I hear people say they want a strict constructionist nominated for the high court. You know, someone like Scalia. AAAGH!!
Scalia is a constructionist alright, just not a very strict one. Since drugs are bad, Mkay, any anti-drug law must therefore be constitutional, Mkay.
(Correction, one was in 1996, the other in 2000.)
It might be cynical of me, but I tend to think that the electorate only reacts to whomever has the better hair and mouths the currently popular pieties with the most convincingly furrowed brow.
I would agree that Phinn hasn’t overstated–Wickard v. Filburn, 1942–a farmer was found in violation of Agriculture Department wheat quotas because he grew a small amount for his own kitchen.
Wheat he grew himself for his own family on his own property was held within the reach of the Interstate Commerce Clause. The facts are not that different from Raich.
Most of the electorate are going to react like my cat watching a can opener.
Constitution? What Constitution?
Very true.
Hillary! floated the idea that the electoral college ought to be abolished in favor of direct election, as though the States don’t even exist. That didn’t cause so much as a ripple.
Most of the electorate took a daily pledge as schoolchildren, affirming that we are “one nation … indivisible.”
A freaking loyalty oath??!!
The way I see it, every single government official, from the President on down to my local postal workers, ought to be required to pledge their loyalty to me, every day.
Phinn – what’s the source for that statistic? I thought the Commerce Clause had a more lingering illness before it died.
TimP:
Sorry, no. (1) The states have no power to enact legislation limiting Congress’s power under the Commece Clause. (2) If the current Congress wanted to respect the Clause, it could simply do so without need of any ancillary legislation; but the current Congress had no power to enact legislation requiring any future Congress to respect the Clause.
State v. –, 1 Hayw. 28 N.C. 1794
Then I guess people will get the government they deserve. Y’know, individual responsibility, accountability and all that stuff that we conservatives, er classic liberals believe in.
I use ‘people’ in the general sense, not every individual person is so ‘deserving.’
Illustrates my point.
The only cite I can find right now is the Wikipedia, unfortunately. But it is fairly accurate:
This was the first time in 60 years, since the conflict with President Franklin Roosevelt in 1936-37, that the Court had overturned a putative regulation on interstate commerce because it exceeded Congress’s commerce power.
The case that changed things was NLRB v. Jones & Laughlin Steel Corp. (1937)
Souter referred to the interregnum in his dissent in Lopez, when he lamented:
Thus, it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost 60 years ago.
Lovely. Isn’t it heartwarming to see him describe adherence to the actual Constitution as something from which we have to “extricate” ourselves?
If I understand Scalia’s opinion correctly, he seemed to suggest that, if Wickard was the law of the land, then Raich had to follow. I wonder if there was enough momentum to overturn Wickard, Raich would not be an issue. Am I wrong on this?
Who controls your life is a zero sum game. If you graphed it, the personal control arrow has been going down for 200 years, the government control arrow up. That’s not likely to change.
Phinn – My faith in Wikipedia is limited. But even if they’ve got this one right, I stand by my point: whatever the number of reversals and affirmances there have been in the past, this is something wholly unprecedented— it could never have been reversed because it had never even been tried.
Oh, don’t get me wrong. It’s absolutely right on that point—the total number of Supreme Court opinions between 1937 and 1995 that struck down a law on the grounds it exceeded the Commerce Clause power was zero. I wrote a case note on the Lopez decision in law school, which at the time was a significant moment in my fledgling legal career. I am 100% sure of the significance of those dates. I just don’t have a better Internet citation for you at the moment.
I have to disagree. For a very long time, the standard has been that Congress has power over anything that touches on or affects interstate commerce. That is not a meaningful standard in its own right.
This 10th Circuit decision is not any better at restoring a meaningful limit, of course, but for all intents and purposes, it doesn’t expand that power very much either.
The fact of the matter is that the power has been deemed to be unlimited in every meaningful way for a long time, save for two exceedingly tiny blips with the Lopez and Morrison decisions, which haven’t made a dent in the other 99.9999% of the unconstitutional federal laws and governmental activities that are out there.