Another Con Law topic: the Commerce Clause

Consider below,

Justice Clarence Thomas (the best one on the Supreme Court)

"[A]t the time the original Constitution was ratified, "commerce" consisted of selling, buying, and bartering, as well as transporting for these purposes...[T]he Constitution [does] not support the proposition that Congress has authority over all activities that "substantially affect" interstate commerce...If anything, the "wrong turn" was the Court's dramatic departure in the 1930's from a century and a half of precedent. [Apart] from its recent vintage and its corresponding lack of any grounding in the original understanding of the Constitution, the substantial effects test suffers from the further flaw that it appears to grant Congress a police power over the Nation." United States v. Lopez (1995) (concurring opinion)

In Lopez, the Supreme Court struck down the Gun-Free School Zones Act of 1990. The law prohibited gun possession in a school zone. Congress justified its authority to pass such a law by relying on the Commerce Clause (regulating interstate commerce).

In fact, the commerce clause has been the tool most often used by Congress to pass basically anything they want to, with almost no limits. The aggregation technique that Justice Thomas dismisses states that an activity if in the aggregate substantially affects interstate commerce, Congress can regulate it. For example, in an infamous case, Wickard v. Filburn (1942), the Supreme Court upheld a New Deal legislation that allowed the Secretary of Agriculture to set quotas on crops. In this case, a farmer was fined for growing too much wheat on his farm. He used the wheat for himself; there was no interstate activity. The Court said that even though there was no interstate activity, if enough farmers did what Filburn did (grow too much wheat), their actions could affect interstate commerce. This view basically places little, if any, limits on the powers of Congress and ignores the 10th Amendment.

Justice Thomas put it well when he wrote: [Until] this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce." United States v. Morrison (2000) (concurring opinion)

This may sound all dull and boring, but the implications are extremely important. One interpretation realizes there are limits on Congressional authority to pass legislation and that some areas are not delegated to the federal government, but are reserved to the States. The other interpretation essentially says "forget the original intent, forget any boundaries" and consolidates federal control, and leaves almost no area safe from Congress.