Is the Constitution a paradox?

In defending the constitutionality of the Utah prairie dog regulation, the government makes a paradoxical claim. Conceding that federal intrusions into areas of traditional state authority are unconstitutional, the government nonetheless argues that the Necessary and Proper Clause allows the federal government to regulate anything for any reason, so long as it does so pursuant to a “comprehensive” scheme. Or, as we put it in People for the Ethical Treatment of Property Owners’ brief:

Federal Appellants and FoA … argue that Raich recognizes federal authority to regulate any activity so long as it’s regulated pursuant to a comprehensive regulatory scheme. The only limit either sees on this shockingly broad authority is that the comprehensive regulatory scheme must, as a whole, substantially affect interstate commerce. But, given that the regulatory scheme must be “comprehensive,” this meager limit will always be satisfied. … Ironically, this interpretation of Raich would hold that minor federal
intrusions into areas of state authority are unconstitutional but wholesale invasions are not.

This reasoning leads to a nonsensical conclusion. It’s a paradox.

It’s also wrong. It conflicts with the text of the Constitution and the cases interpreting it. In our brief, we argue that the Necessary and Proper Clause only gives the federal government the authority it needs to be able to regulate commerce, i.e. economic activity or the market for a commodity. That’s why the text reads:

The Congress shall have Power To …make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.

When the foregoing power at issue is the Commerce Clause, this means the power is limited to effectuating the government’s ability to regulate commerce. This is why the Supreme Court has never upheld a comprehensive scheme under this clause that did anything but regulate economic activity or the market for a commodity. The government’s opposing theory would give it limitless power.

It would allow the federal government to forbid any crime so long as it did so as part of a comprehensive criminal statute. … The federal government wouldn’t have to limit itself to crime, of course. It could comprehensively regulate any activity that affects any living thing. If it was feeling particularly cheeky, Congress could even adopt a statute called “The Federal Police Power Act” [the police power is a broad power exclusively held by the states] purporting to comprehensively regulate society to protect public health, safety, and welfare.

If you’d like to read more about the scope of the Necessary and Proper Clause and its relationship to the Endangered Species Act, check out my forthcoming article in the Tulane Journal of Environmental Law.

Also, don’t forget that we’ll be co-hosting an event with the Competitive Enterprise Institute on June 2nd in D.C. More information on that event can be found here.