The Battle for State's Rights (Part III)

The Court made a stand against Commerce Clause expansion in United States v. Lopez, United States v. Morrison and more recently United States v. Bond. In these cases, the Court held that Federal gun laws, sex laws, and chemical laws were unconstitutional. In these cases, the Court distinguishes between economic issues regulated by commerce and noneconomic issues not regulated by commerce. The conservative Court did not try to overturn precedent, but instead placed limits on the Commerce Clause by not only pointing out noneconomic differences in these cases when compared to FDR economic rulings, but determining “what is truly national and what is local.” Justice Thomas points out “if Congress” as the dissent suggests “may regulate all matters that substantially affect commerce” then there would be no need to enumerate any Congressional powers since they would be covered by the dissents definition of commerce. The dissent also suggests that having federal gun laws are “rationale” and therefore that makes them constitutional. What the dissent fails to suggest is that all states had (and have) gun, sex, and criminal laws that would cover all these cases on the “local” level. Federal powers are superfluous in these instances and they offer nothing to help the prosecution of these crimes. The Court digresses again in Gonzales v. Raich striking down a California law that allowed sick persons, with prescriptions, to grow their own marijuana for personal consumption. In this case, the Court held growing marijuana for personal consumption was an economic activity. In Raich, the most cited case was Wickard which would make one think the decision was questionable at best. Justice Thomas best sums up the evolution of the Commerce Clause in his dissent “There is an inexorable expansion from ‘commerce’, to ‘commercial’ and ‘economic’ activity, and finally to all ‘production, distribution, and consumption’ of goods or services for which is an ‘established interstate market’”. Thomas further observes “Federal power expands, but never contracts, with each new locution, the majority is not interpreting the Commerce Clause, but rewriting it.” Thomas further says “This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the federal government to strip States of their ability to regulate intrastate commerce – not to mention a host of local activities, like mere drug possession, that are not commercial.”

In the ObamaCare case: NFIB v. Sebelius, although the Court found ObamaCare to be legal via the Spending Clause (ability to tax), the Court did strike down the constitutionality of both the Commerce and Necessary and Proper Clauses. This was important, because the individual mandate did not regulate any existing commercial activity. Roberts said “The Framers gave Congress the power to regulate commerce, not to compel it.” If the Court allowed the constitutionality of this law via the Commerce Clause Congress could pass a mandate for citizens to buy any product they deem as Necessary and Proper to regulate commerce. Yes, that is correct, it would have given Congress the power to regulate economic inactivity as commerce.

The bottom line is that the definition of what is “commerce” has drastically changed from “trade” to include anything that is economic. Also, the definition of what constitutes necessary and “proper” has changed to mean anything that is “convenient”. The Court accomplished its goal of expanding the Commerce Clause by overruling past precedent. However, in more recent history, the Court has started to push back and yield more sovereignty back to the States.