Don't Garcia-ize the Commerce Clause

Near the end of his oral argument, Paul Clement urged the Supreme Court not to “Garcia-ize the Commerce Clause.” This was great, but it’s probably over the heads of non-lawyers, so here’s what he meant.

In 1976, the Supreme Court issued a decision called National League of Cities v. Usery, in which it held that under the Tenth Amendment, the federal government could not dictate the standards on which local government employees could be employed. Such concerns are purely local matters and not within the federal government’s powers. But very shortly after that, in 1985, the Court switched back and overruled that decision in a case called Garcia v. San Antonio. In Garcia, the Court held that the Tenth Amendment is sufficiently enforced through the political process, so that the courts should not be in the business of enforcing it at all. Basically, if Congress decides to legislate in an area, that just is appropriate, and the Tenth Amendment automatically doesn’t apply. This “political process” theory of the Tenth Amendment basically eliminates that Amendment as a serious check on the legislative branch.

The Commerce Clause, of course, interacts with the Tenth Amendment in an important way: if something’s a federal power under the Commerce Clause, then it cannot be a “power reserved to the states” by the Tenth Amendment. So it’s important that the judiciary enforce meaningful limits on the Commerce Clause rather than turning the whole thing over to the “political process” and abandoning serious judicial enforcement. This is what some have urged; they’ve argued that the “political process” should be the sole limit on Congressional Commerce Clause power, in the same way that Garcia made it the only boundary on federal power in Tenth Amendment cases. The problem with this is that the Constitution is supposed to limit the “political process,” not the other way around!

Disturbingly, Justice Sonya Sotomayor answered Clement by arguing that the Commerce Clause is somehow already “Garcia-ized.” She quoted, out of context, from Gibbons v. Ogden, a legendary old Commerce Clause case, in which Chief Justice Marshall said that Congress’ power to regulate interstate commerce is extremely broad. But what Marshall meant was that Congress has extremely broad power when it is actually regulating interstate commerce–not that it has the power to do whatever it wants and call it commerce. That is, Marshall was not calling for judicial abdication; on the contrary, even in McCulloch, one of his most pro-federal government opinions, Marshall insisted that Courts retain a role in enforcing constitutional boundaries.