Constitutional Authorization

A question for all….

The powers of the congress are layed out in Section 8 of Article I of the constitution, which reads as follows:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Which of these explicit powers authorizes the creation of (to take just one of many examples) the Environmental Protection Agency and the law/regulations that it promulgates?

43 Responses

  1. The Infinitely Elastic Commerce Clause. Pollution has an impact that crosses state lines.

    Next?

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    • yello:

      The Infinitely Elastic Commerce Clause. Pollution has an impact that crosses state lines.

      Pollution is not commerce. Back to square one.

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  2. I dont see it, but i think they could tax it.

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  3. a more perfect union, bagger

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  4. Water pollution that crosses state lines probably would fall under Navigable Servitude.

    http://en.wikipedia.org/wiki/Navigable_servitude

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    • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

      Regulating commerce easily includes regulating the interstate nuisances interstate commerce produces because the common law of nuisance was understood at the time of the drafting, Scott. I do not think even the most textual originalists reject the doctrine that the common law was cognizable by the Constitution and the Federal Court system.

      I will add that the most contentious issues are almost always the reach of the Commerce Clause and the reach of the 14th Amendment.

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      • Mark:

        Below is an EPA regulation relating to asbestos.

        Pursuant to the Asbestos Hazard Emergency Response Act (AHERA), the Asbestos-Containing Materials in Schools rule requires local education agencies to inspect their school buildings for asbestos-containing building material, prepare asbestos management plans and perform asbestos response actions to prevent or reduce asbestos hazards. Public school districts and non-profit private schools, including charter schools and schools affiliated with religious institutions (collectively called local education agencies) are subject to the rule’s requirements.

        Can you explain how this falls under congress’s common law power to regulate nuisances under the inter-state commerce clause, because I don’t see how asbestos in school buildings has anything at all to do with either commerce or inter-state nuisances.

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        • Was the asbestos shipped in interstate commerce? Or more pointedly, was it commercially produced? If a state made its own asbestos wholly within the state, and shipped none of it out of state, under WvF even Scalia [from his Lopez opinion, as I recall] would of course claim the substitution principle.

          Some jurists argue that the power is not limited to interstate commerce at all. I don’t like their arguments, but you should read them too. They are based on the meaning of “among” as being broader than the meaning of “between”.

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        • Mark:

          Was the asbestos shipped in interstate commerce?

          I don’t know, but the regulation under question is regulating neither the shipper nor the shipping of the asbestos. So it seems an irrelevant question with regard to this regulation.

          Or more pointedly, was it commercially produced?

          Undoubtedly, but this seems to me equally irrelevant, not only because, as above, the regulation is regulating neither the producer nor the production of asbestos, but also because the commerce clause authorizes regulation of interstate commerce, not the commercial production of any good or service.

          If a state made its own asbestos wholly within the state, and shipped none of it out of state, under WvF even Scalia [from his Lopez opinion, as I recall] would of course claim the substitution principle.

          Again, the regulation is not regulating the shipping/selling of asbestos at all, much less between (or among) states. So I don’t see how the substitution principle is at all relevant.

          Some jurists argue that the power is not limited to interstate commerce at all.

          It seems to me that the only way to conclude that the asbestos regulation under question is constitutional is to believe they are right.

          The regulation in question is imposed on owners of buildings that contain asbestos, not on any commerce they may engage in. The fact of owning an existing building that contains asbestos is not, in any normal understanding of the term, commerce at all, much less interstate commerce. So, again, the question remains…what in the constitution authorizes the federal government to impose this “rule” on owners of school buildings?

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  5. Isn’t the EPA the regulatory agency under the various versions of the Clean Air Act? Is there constitutional authority for monitoring and regulating toxic air? Do I care if there is explicit constitutional authority or not………………….not that much really. Air and water pollution crosses state lines and affects the health of all our citizens. I remember what it was like growing up in CA when we couldn’t play outside and breathe easily at the same time.

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    • lms:

      Do I care if there is explicit constitutional authority or not………………….not that much really.

      Happily, you have not taken an oath to uphold and defend the constitution. Such indifference by those who have is a much bigger problem, and is destroying limited government, the very genius of the founding fathers.

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  6. Scott

    Happily, there are elected officials willing to implement a more relaxed interpretation of the document in order insure the health and safety of our citizens. I may not agree with every federal takeover of policy but there are definitely a few I can appreciate, and the EPA is actually one of them.

    Do you think there is anyone in Congress, either chamber, right now who would follow a strict interpretation of the Constitution? A person who would actually meet your standards? Rand Paul talks a good game but I don’t see him undoing any Federal programs such as the likes of the Libertarian platform one of the Koch brothers devised in the 80’s.

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    • lms:

      Happily, there are elected officials willing to implement a more relaxed interpretation of the document in order insure the health and safety of our citizens.

      Where in the constitution are elected officials authorized to attempt to “insure the health and safety of our citizens”?

      I may not agree with every federal takeover of policy but there are definitely a few I can appreciate, and the EPA is actually one of them.

      Please note that I am not claiming that the federal government should not be involved in the kinds of regulations the EPA imposes (although I might depending on the specifics). I have simply said that the constitution as it exists does not authorize it to do so. If people want the feds to be authorized to do what the EPA does, then they can pass an amendment authorizing it. There is no need, and quite a lot of danger, in simply pretending for the sake of convenience that it is authorized.

      Does the constitution exist for a reason or not?

      Do you think there is anyone in Congress, either chamber, right now who would follow a strict interpretation of the Constitution?

      Probably a few, but not nearly enough to undo the damage that has been and is being done. Besides, what matters at this point is not so much congress, but the courts. The courts are supposed to be the check on the unconstitutional acts of the political branches. It has largely ceased to perform that function as it has been transformed into a political branch itself.

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  7. David Koch ran as the Libertarian Party’s vice-presidential candidate in 1980. I don’t see anyone currently in office trying to do even half of this right now. Below are just excerpts from his dream platform. If anyone runs on a platform such as this today, even with the enthusiastic new members of the Libertarian party or Libertarian leaners, those who tout the Constitution as the only authority recognizing the Federal government’s functions, will surely lose. As a country, we have moved away from the original document, for good or ill, it’s what we’ve done.

    “We urge the repeal of federal campaign finance laws, and the immediate abolition of the despotic Federal Election Commission.”*

    “We favor the abolition of Medicare and Medicaid programs.”*

    “We favor the repeal of the fraudulent, virtually bankrupt, and increasingly oppressive Social Security system. Pending that repeal, participation in Social Security should be made voluntary.”*

    “We support the eventual repeal of all taxation.”*

    “We support repeal of all law which impede the ability of any person to find employment, such as minimum wage laws.”*

    “We oppose all government welfare, relief projects, and ‘aid to the poor’ programs. All these government programs are privacy-invading, paternalistic, demeaning, and inefficient. The proper source of help for such persons is the voluntary efforts of private groups and individuals.”*

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    • lms:

      those who tout the Constitution as the only authority recognizing the Federal government’s functions

      What other authority is there?

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  8. Here’s the rest of it in case some of you are too young to remember it. I know it’s off topic a little but pertinent I think.

    “We urge the repeal of federal campaign finance laws, and the immediate abolition of the despotic Federal Election Commission.”
    “We favor the abolition of Medicare and Medicaidprograms.”
    “We oppose any compulsory insurance or tax-supported plan to provide health services, including those which finance abortion services.”
    “We also favor the deregulation of the medical insurance industry.”
    “We favor the repeal of the fraudulent, virtually bankrupt, and increasingly oppressive Social Security system. Pending that repeal, participation in Social Security should be made voluntary.”
    “We propose the abolition of the governmental Postal Service. The present system, in addition to being inefficient, encourages governmental surveillance of private correspondence. Pending abolition, we call for an end to the monopoly system and for allowing free competition in all aspects of postal service.”
    “We oppose all personal and corporate income taxation, including capital gains taxes.”
    “We support the eventual repeal of all taxation.”
    “As an interim measure, all criminal and civil sanctions against tax evasion should be terminated immediately.”
    “We support repeal of all law which impede the ability of any person to find employment, such as minimum wage laws.”
    “We advocate the complete separation of education and State. Government schools lead to the indoctrination of children and interfere with the free choice of individuals. Government ownership, operation, regulation, and subsidy of schools and colleges should be ended.”
    “We condemn compulsory education laws … and we call for the immediate repeal of such laws.”
    “We support the repeal of all taxes on the income or property of private schools, whether profit or non-profit.”
    “We support the abolition of the Environmental Protection Agency.”
    “We support abolition of the Department of Energy.”
    “We call for the dissolution of all government agencies concerned with transportation, including the Department of Transportation.”
    “We demand the return of America’s railroad system to private ownership. We call for the privatization of the public roads and national highway system.”
    “We specifically oppose laws requiring an individual to buy or use so-called “self-protection” equipment such as safety belts, air bags, or crash helmets.”
    “We advocate the abolition of the Federal Aviation Administration.”
    “We advocate the abolition of the Food and Drug Administration.”
    “We support an end to all subsidies for child-bearing built into our present laws, including all welfare plans and the provision of tax-supported services for children.”
    “We oppose all government welfare, relief projects, and ‘aid to the poor’ programs. All these government programs are privacy-invading, paternalistic, demeaning, and inefficient. The proper source of help for such persons is the voluntary efforts of private groups and individuals.”
    “We call for the privatization of the inland waterways, and of the distribution system that brings water to industry, agriculture and households.”
    “We call for the repeal of the Occupational Safety and Health Act.”
    “We call for the abolition of the Consumer Product Safety Commission.”
    “We support the repeal of all state usury laws.”

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  9. Honestly Scott, most of us common folk out here in the country just assume some lawyer somewhere is figuring all this stuff out for us. If, as you say, the courts are largely becoming a political branch of the government then I suppose we’re all screwed in one way or another. Hopefully, there are a few good judges out there somewhere. I think the Constitution has been somewhat loosely interpreted for quite a number of years in order to enact all manner of laws and regulations to promote the general welfare of the people (at least ostensibly). I actually don’t lose too much sleep over it. Some of it affects me personally but most of it really doesn’t. I’m happy to pay my taxes and enjoy some of the benefits I’ve accrued.

    I also assume that as these entities and policies evolved another lawyer or group of lawyers figured out a way to make it at least appear legal. I wouldn’t necessarily trust you as the voice of authority claiming otherwise.

    I knew you’d appreciate the old Koch platform. It’s sort of a wet dream for most of you guys here…………..

    I suppose I’m a bad American for not worrying too much about the legal technicalities of the Constitution and what the Federal government is and isn’t allowed to control, but I genuinely just don’t. If I wanted to be a lawyer I would have gone to Law School.

    I do agree there are numerous things the states (at least most of them) can, and do, do better though.

    Edited to add that perhaps I shouldn’t participate in these kinds of threads (legal ones, or financial ones for that matter) but I do appreciate the EPA so here I am. 🙂

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    • lms;

      I also assume that as these entities and policies evolved another lawyer or group of lawyers figured out a way to make it at least appear legal. I wouldn’t necessarily trust you as the voice of authority claiming otherwise.

      You don’t need to trust me. The Constitution is out there (right here, in fact) for anyone to read. It is an extremely short document and it is written in largely accessible language. One need not have legal training, for example, to understand that “to regulate commerce among the states” does not mean “to compel owners of buildings to remove asbestos”.

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  10. Scott, I’ve read the Constitution but I’m not going to debate asbestos with you. I assume at some point the EPA was granted the authority to regulate it because of the health hazard. It’s not specifically in the Constitution so I can’t explain how they were given that authority, or on what legal grounds if any, that determination was made. Perhaps someone should sue the Federal government over it if it’s an important issue and we would then receive either clarification or justification for our righteous indignation.

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    • lms:

      Scott, I’ve read the Constitution but I’m not going to debate asbestos with you.

      We aren’t arguing asbestos. We are discussing what the constitution authorizes the fed government to do.

      I assume at some point the EPA was granted the authority to regulate it because of the health hazard.

      Yes, by congress, but of course the question is whether congress itself has that authority to give. I think a plain reading of the constitution shows that it does not.

      Perhaps someone should sue the Federal government over it if it’s an important issue…

      Do you think whether or not the federal government is operating within its constitutional mandates is an important issue? Your earlier expressed indifference suggests probably not. I think it is.

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  11. Scott

    I think it is a semi-important issue but I don’t feel qualified to determine if the Federal Government is or isn’t operating within its constitutional mandates. I think it’s one of those things most Americans don’t worry about too much. Perhaps we’re too trusting and someday we’ll wake up and wonder why we didn’t care a little more. I really don’t know but I’m not going to lose sleep over it. There are plenty of other things to keep me awake at night that are personally much more important to me.

    We elect others to represent us in Congress and they in turn make sure the Judges are seated in the appropriate court houses. it’s Congress’ job to follow the Constitution and the laws and the judges job to ensure that they are. I’m not qualified to do either. Over my voting life time, and I’ve been fairly involved in some elections, I’ve generally found that when things go a little crazy in the wrong direction the people get fed up and vote in new representatives.

    So yes, I think it’s somewhat important but I’m trusting others to oversee it for me. I think it’s important that words have meaning but sometimes those meanings are slightly open to interpretation………that’s what I’ve always assumed has happened in regards to things like the EPA (and perhaps even asbestos) and whatnot.

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    • lms:

      So yes, I think it’s somewhat important but I’m trusting others to oversee it for me.

      In the past you’ve pretty routinely expressed distrust in politicians.

      Anyway, obviously you are not alone, and probably in a majority. I think most people either don’t know or don’t particularly care what the constitutional limits on federal power are, and maybe even that such limits even exist. Unfortunately, an uninformed/uninterested and trusting public is not particularly fit for self-rule, and will increasingly find itself the ruled rather than the rulers. As we are seeing.

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  12. It’s true, I’m not overly trusting of politicians, on either side, but I do think there are still a few good men and women working in government.

    I don’t think it’s fair to declare so many of us un-fit for self-rule, after all we do have a representative government not a true democracy. I can’t follow every detail of every debate in Congress, I have a life to live and they have a job to do. I work on my end to replace those representatives that I don’t trust. I’ve done it at the local level, the state level and the national level………………that’s my contribution to so-called self-rule.

    Most people are generally either corrupt or corruptible so I worry about that and then hope and pray for the rest of us. I don’t have time to sit around re-reading or memorizing the Constitution and checking to make sure Congress is upholding their duty every minute of every day. The founding fathers created a system of checks and balances for a reason.

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    • lms:

      I can’t follow every detail of every debate in Congress,

      One of the very important reasons that what congress does needs to be extremely limited. The sphere of existence over which the federal government exercises control has grown so far out of proportion to any person’s ability to really know what it is doing or how it effects us as individuals, it really can no longer be said that our representatives are accountable in any meaningful way.

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      • Scott – I am just curious, here. There is a federal criminal statute that provides that a person convicted of a felony ‘who receives, possesses, or transports in commerce or affecting commerce . . . any firearm . . .’ shall be punished as prescribed therein.

        Do you think the convicted felon should be able to defend a federal prosecution because the statute is overbroad as applied once s/he has received and taken possession of the weapon because it is no longer in commerce? Do you think it matters how long the weapon has been out of commerce? Do you think, for example, that Colt Peacemakers built in CT in 1878 but provably in TX since, are sufficiently removed from commerce? Because no Supreme Court, liberal, conservative, textualist, originalist, minimalist, activist, or restrainist has ever accepted that argument.

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        • Mark:

          Let me understand the statute and its purpose before answering. Is it the case that essentially the possession of any firearm by a convicted felon is outlawed, full stop? And, if so, why does the law bother with the distracting language about commerce instead of simply saying a felon is not allowed to be in possession of a firearm?

          Am I correct in suspecting that the reference to commerce is there simply to justify the law under the commerce clause, because otherwise it would fall afoul of the second amendment?

          Addendum:

          Do you think, for example, that Colt Peacemakers built in CT in 1878 but provably in TX since, are sufficiently removed from commerce?

          Would a felon in CT possessing that Colt Peacemaker be any less subject to prosecution than the felon in TX?

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        • The stated Congressional intent was to prohibit firearms to unpardoned convicted felons and the hook that was chosen for federal jurisdiction was “commerce”. And in the run of cases, it has not made a difference if the gun was in CT, where it was mfg’d.

          The Supremes did make prosecutors allege “commerce” in the indictments and then “prove” commerce [which they made a no-brainer].

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        • Mark:

          The stated Congressional intent was to prohibit firearms to unpardoned convicted felons and the hook that was chosen for federal jurisdiction was “commerce”. And in the run of cases, it has not made a difference if the gun was in CT, where it was mfg’d.

          Yes, I think this is a total and complete abuse of the commerce clause and is clearly overstepping the bounds of federal power as mandated by the constitution. Possessing a firearm is not an act of commerce in any sense whatsoever, much less a transaction taking place between two people in different states. The fact that you put the word “prove” in quotation marks suggests to me that even you implicitly admit the ruse that is taking place. And if the court truly does make establishing commerce a “no brainer” and it really does make no difference that the gun has never even crossed state lines at any point in its existence, then clearly the court can’t be bothered to put even the thinnest veil of legitimacy over its indifference to what the constitution says.

          If what you say is correct, that no judge has ever objected to this obvious abuse of the commerce clause, then you have managed to depress me even more than I have already been over the state of constitutional jurisprudence in the nation.

          BTW Mark, when was the last time this statute was before the Supremes?

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  13. Why is it a Federal issue at all?

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  14. If what you say is correct, that no judge has ever objected to this obvious abuse of the commerce clause, then you have managed to depress me even more than I have already been over the state of constitutional jurisprudence in the nation.

    Join me in acknowledging that it’s over.

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    • Just a matter of time, truly. The widespread indifference to maintaining any semblance of fidelity to the constitution really does depress me.

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      • Mark:

        I was thinking a bit more about the language you cited from the firearm statute.

        who receives, possesses, or transports in commerce or affecting commerce…

        What does it even mean to “possess” something “in commerce”? Commerce refers to the buying and selling of goods and services, usually on a large scale. To possess something in commerce could, conceivably, mean to buy it, but to “receive” something in commerce would seem to cover that, and by explicitly distinguishing between “receives” and “possesses” the statute obviously implies that to “receive” something in commerce means something different than “possessing” that thing in commerce.

        What is the distinguishing characteristic between possessing something “in commerce” and possessing that thing not in, or outside of, commerce?

        I think it is worth noting that the constitution gives authority to congress to regulate interstate commerce, not authority to regulate anything it wants to as long a it uses the word “commerce” somewhere in the regulation.

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        • The better question is what isn’t interstate commerce? Nearly every product has some component cross a border at some point.

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        • yello:

          The better question is what isn’t interstate commerce? Nearly every product has some component cross a border at some point.

          This is a fairly good indication of the problem with your (and the modern legal) conception of the commerce clause. Commerce means the buying and selling of a good or service, not any and all aspects of a thing that has been or could be bought/sold. If the founders had intended for the feds to have the power to regulate in any conceivable way it wants anything that ever has been or could be bought/sold, they could have written it into the constitution. They didn’t.

          When a gun manufacturer in one state buys parts for its guns from another manufacturer in a different state, that purchase/sale is an example of interstate commerce.

          But when that gun manufacturer puts the various parts of the gun together, ie it manufactuers guns, that manufacturing is not an example of of any kind of commerce at all, much less interstate commerce.

          If a person from one state buys a gun from a gun dealer in another state, that is an example of interstate commerce.

          But if that person simply happens to possess a gun, such possession is not an example of any kind of commerce at all, much less interstate commerce, and it doesn’t matter where the parts of the gun were originally manufactured, or where the gun was put together.

          Congress has the constitutional power to regulate the purchase/sale of goods and services that occur between citizens of two or more different states. It doesn’t have the constitutional power to regulate every conceivable aspect of manufacture, possession, ownership, and use of any good/service that could be bought/sold between citizens of two or more different states, or that are comprised of parts that have been bought/sold across state lines. “Commerce” means something specific, not whatever we might need it to mean in order justify laws that congress wants to impose.

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        • I think a lot of the corruption of the meaning of the Constitution, as characterized by the perverse and essentially limitless breadth of the commerce clause as currently applied, has derived largely from a modern day conception of the federal government that is quite at odds with that which was held by the architects of the constitution, and which they believed they had enshrined in it.

          Today most people view the federal government as the primary governing body regulating the actions of US citizens. But that is not what the founders believed, nor what they intended. The federal government is supposed to be primarily the governing body regulating the actions of States, not citizens. State governments were intended to be the primary governing bodies overseeing individual citizens. This is why federal powers were explicitly listed and limited, while state powers were explicitly left open-ended. The intention of the commerce clause, then, was not to facilitate the federal government in compelling individuals engaged in commerce to behave in ways amenable to the feds.. It was to facilitate the federal government in compelling state governments to behave in ways amenable to the feds. The founders wanted to prevent a situation in which one state was imposing state regulations on trade so as to benefit in-state actors at the expense of out of state actors. As explained by Publius (Madison) in Federalist 42:

          A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out, to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter, and the consumers of the former.

          Madison goes on to say:

          The necessity of a superintending authority over the reciprocal trade of confederated States has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each Canton is obliged to allow to merchandizes, a passage through its jurisdiction into other Cantons, without an augmentation of the tolls. In Germany, it is a law of the empire, that the Princes and States shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the Emperor and Diet; though it appears from a quotation in an antecedent paper, that the practice in this as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands, on its members, one is, that they shall not establish imports disadvantageous to their neighbors, without the general permission.

          In each instance that Madison mentions, it is the constituent governments that are being managed by the regulation, not individual merchants. And the point was to standardize trading practices across states so that one state could not pass laws imposing a unequal burdens on trade from other states. The point was not to regulate individual actors in the way in which ran their business, which is how the clause is used today (and then some).

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  15. It certainly doesn’t mean growing wheat on your own farm for your own personal consumption. You can start the roll back right there.

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  16. I’d love to know from yello what would not be considered commerce and therefore a limit on Federal power.

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    • As I wrote at the beginning, the two big areas of disagreement are over the reach of the Commerce Clause and the extent of 14thA. rights. Richard Posner, the brilliant CJ of the 7th C., a Reagan appointee, considered a conservative jurist [and economist, as well], has just written this:

      http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D09-04/C:14-2526:J:Posner:aut:T:fnOp:N:1412339:S:0

      That was 14th A. stretch.

      Now back to the Commerce Clause. W.v.F., as JNC and I keep saying, is the lynchpin of all of these expansive Commerce Clause rulings.

      George, your question about the firearms statute is the best, I think, because police powers/public safety, like marital law, are supposed to be left to the states, except insofar as other states may be affected by a state’s action. It is far easier for me to justify regulation of commercial pollutants that can cross state lines than it is for me to justify that firearms statute. That is why I picked it for what I consider to be an extreme example, both legislatively, and in how the judiciary acquiesces.

      Scott, I haven’t kept up past the 90s on the case law under the weapons statute because Austin instituted a Public Defender in Fed Court and civil lawyers who practiced in Fed Ct were no longer subject to being pressed into criminal defense work for the indigent, by the mid 90s.

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      • A recent defense monograph:

        http://www.fd.org/docs/select-topics/common-offenses/firearms/tim_henry.pdf?sfvrsn=4

        Statute has been expanded to include persons convicted of domestic violence misdemeanors, and many others, who might possess a firearm affecting commerce. The monograph points out that Heller specifically approved this statute and state statutes like it.

        This defense attorney makes a strong argument for defense attorneys to raise the “Commerce” defense whenever possible. I quote:

        V. Commerce Clause challenges.
        In a nutshell:
        1) In the usual firearms prosecution, and regardless of the particular subsection, 18 U.S.C. § 922(g) proscribes firearms possession that is “in or affecting commerce . . . .” The
        government’s interstate commerce theory has traditionally been that the firearm was manufactured in a different state or foreign country and had to travel in interstate commerce at sometime in the past to arrive in the state where the defendant possessed it.

        2) To be “in commerce,” “denote[s] only persons or activities within the flow of interstate commerce-the practical, economic continuity in the generation of goods and services for interstate markets and their transport and distribution to the consumer.” United States v. American Building Maintenance Industries, 422 U.S. 271, 276 (1975), citing Gulf Oil Corporation v. Copp Paving Company, Inc., 419 U.S. 186, 195 (1974), citing Schechter
        Poultry Corp. V. United States, 295 U.S. 495, 542-544 (1935).

        3) Usually, our clients are caught possessing the firearms in their actual or constructive possession, whether at home, in a car, or on the street, i.e., where the firearm has long since left the “flow” of interstate commerce. Given the above definition of “in commerce,” such possession clearly would seem to not qualify. Thus, the government should be required to go under a theory that our client’s possession is “affecting” commerce.

        4) In United States v. Lopez, 514 U.S. 549, 558 (1995) (re: 18 U.S.C. § 922(q) Gun-free School Zone Act), the Supreme Court reiterated the “three broad categories of activity that
        Congress may regulate under its commerce power.” Those categories allow Congress to regulate a) the use of the channels of interstate commerce; b) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and c) those activities
        having a substantial affect on interstate commerce.

        5) The Supreme Court found the firearms regulation in Lopez was unconstitutional under the third category as the intrastate activity of possessing a gun in a school zone does not
        substantially affect interstate commerce. As has been pointed out by a number of circuit ourts of appeal, if the “thing” in interstate commerce being regulated, i.e., the firearm, were
        to fall within the second category of Lopez, then Lopez itself would have been decided differently as the gun in that case was also likely manufactured out-of-state. See United States v. Patton, 451 F.3d 615, 620-622 (10th Cir. 2006) (re: “body armor” prosecution under 18 U.S.C. § 931), citing Gibbs v. Babbitt, 214 F.3d 483, 491 (4th Cir. 2000). Thus, if our client’s isolated gun possession rightly falls under this third category, the government should be required to establish this possession substantially affects interstate commerce; a feat they can’t honestly accomplish if you can get a jury instruction stating this different standard.
        For a complete Commerce Clause challenge to a § 922(g) firearms’ prosecution, see also Patton, supra, on why Scarborough v. United States, 431 U.S. 563 (1977), should no longer control in light of Lopez, supra, and United States v. Morrison, 529 U.S. 598 (2000).

        There is some hope of getting Supreme Court review again if this defense strategy is widely adopted.

        Full disclosure: I almost pulled this off in a 70s case where I was court appointed. A good story in its own right. The gun was indeed a Peacemaker knockoff that was not built in CT. Unfortunately, when I moved for directed verdict of acquittal when the USA rested, and stated my commerce grounds, the AUSA moved to reopen his case and the judge let him. Never happen in a civil case, but judges are easier on prosecutors than on plaintiffs, b/c they know prosecutors get no appeal. When the trial resumed, the govt. had flown down an expert from Colt, who testified convincingly that the gun had been copied in MX by a skilled and well known gunsmithing operation.

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      • Mark:

        Now back to the Commerce Clause. W.v.F., as JNC and I keep saying, is the lynchpin of all of these expansive Commerce Clause rulings.

        Yes, and it is an obviously incorrect decision, on which the continued corruption of the constitution has been based.

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  17. The idea was to keep those products flowing without states setting up barriers and/or tariff. but it’s moot. commerce is everything, and Justice Thomas in his Raich dissent is correct. the idea that congress and/or the federal government can be constrained at all is dead.

    the only reasonable thing to do is to use that power and stick it to your political enemies.

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