The N.Y. Times' boundless reading of the Commerce Clause


Author: Brandon Middleton

My colleague Tim Sandefur's analysis of yesterday's New York Times editorial is spot-on.  Tim rightly notes the Times' failure to understand the threat that accompanies an expansive reading of the Commerce Clause:

Although the Times acknowledges that this clause has been
“broadly interpreted,” it nowhere acknowledges the dangers imposed by
such a broad interpretation—dangers that even the liberal justices on
the U.S. Supreme Court have acknowledged. These dangers include nothing
less than the total inversion of the Constitution’s design, giving
federal officials power over every activity in the United States—even
though the Constitution was designed to limit federal power.

I would like to add a related point: the real problem with the Times and the left is not simply that they favor a broad reading of the Commerce Clause.  It is that they seem to want the federal government's commerce power to be without limit.

Liberals want laws "of enormous benefit to society."  But they are unable to articulate a principled limit to this ideal.  According to many on the left (and, to be fair, quite a few on the right), the limits of the federal government's Commerce Clause power should be determined by the majority, by those in power–if Congress determines that a law presents a "substantial effect" on interstate commerce, then that law is unquestionably constitutional.

That's a scary proposition.  As Tim explained yesterday, everyone–no matter his or her political viewpoint–should be concerned with unlimited federal power under the Commerce Clause.

Fortunately, the Supreme Court has twice in recent years rejected a boundless reading of the Commerce Clause.  And contrary to what the Times suggested in its editorial, these cases remain good law in the Roberts era.

First, in U.S. v. Lopez, the Court held that the Gun Free School Zones Act was unconstitutional, and that Congress could not prohibit the possession of guns near schools.  This case is important because it shows that in order for a law to be valid under the Commerce Clause, the underlying reason for the federal law must allow a limit to federal power.  Congress can't simply justify a law by saying that it will provide an "enormous benefit to society."

This is essentially what the feds tried to do in Lopez, by arguing that the guns near schools may result in violent crime which may undermine the school learning environment which may result in less productive citizens which may hurt the national economy.  Of course, there is no limit to such logic, and the Court rejected it accordingly.

Second, in U.S. v. Morrison, the Court confirmed that a law is not valid under the Commerce Clause simply because Congress says it is.  In Morrison, Congress passed the Violence Against Women Act in order to provide a legal remedy to victims of gender-motivated violence.  But even the legislative branch's conclusion that gender-motivated violence "substantially affects" interstate commerce wasn't enough to uphold the law.  As the Court held, "simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so."

Lopez and Morrison, then, provide the true test for whether a law is valid under the Commerce Clause "substantial effects" test, notwithstanding the Times' suggestion that the health care individual mandate is valid because Congress "explicitly inserted a line in the law that the insurance mandate 'substantially affects interstate commerce.'"

Fortunately for Americans, there is a limit to the federal government's power under the Commerce Clause.  And as I explained in a recent brief in the delta smelt Commerce Clause litigation, that limit remains in effect under cases decided in the Roberts era, including Gonzales v. Raich and U.S. v. Comstock.  If it were any different, as the Court warned in Morrison, the federal government would have "an unlimited license to regulate."