Men in Black

by Levin, Mark R.

  In addition to contravening the proscribed and specified powers the Constitution confers on the federal government, an expansive use of the commerce clause violates the Tenth Amendment, which underscores the limited role intended for the federal government. It states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”4

  Steven Calabresi, professor of law at Northwestern University School of Law, has eloquently credited federalism with being an essential part of the genius of the American system:

  [I]t prevents violence and war. It prevents religious warfare, it prevents racial warfare. It is part of the reason why democratic majoritarianism in the United States has not produced violence or secession for 130 years, unlike the situations for example, in England, France, Germany, Russia, Czechoslovakia, Yugoslavia, Cyprus, or Spain. There is nothing in the U.S. Constitution that is more important or that has done more to promote peace, prosperity, and freedom than the federal structure of that great document. There is nothing in the U.S. Constitution that should absorb more completely the attention of the U.S. Supreme Court.5

  Unfortunately, federalism has absorbed the attention of the Supreme Court only to the extent of overruling it.

  The seminal case involving congressional regulation of interstate commerce is the 1824 decision in Gibbons v. Ogden, in which the Supreme Court affirmed that Congress could regulate interstate commerce.6 But Chief Justice John Marshall, writing for the Court, emphasized that the power to regulate interstate commerce did not extend to the regulation of any other commerce between individuals and within states. He wrote that the power to regulate interstate commerce “is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such power would be inconvenient, and is certainly unnecessary.”7

  Gibbons outlined the basic tenets of congressional regulation of interstate commerce. Over the next 110 years, Congress was relatively careful to limit its use of the commerce clause as a pretext to enact new laws. As Justice Clarence Thomas has noted:

  From the time of the ratification of the Constitution to the mid-1930s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause. Moreover, there was no question that activities wholly separated from business, such as gun possession, were beyond the reach of the commerce power. If anything, the “wrong turn” was the Court’s dramatic departure in the 1930s from a century and a half of precedent.8

  The “dramatic departure” Thomas referred to was President Franklin Roosevelt’s New Deal. During the first half of the 1930s, Congress enacted a number of laws that were purportedly intended to revive the American economy. The Supreme Court, however, routinely struck down these laws because they went far beyond the commerce clause of the Constitution. For example, in 1934 Congress passed the Railroad Retirement Act, which established compulsory retirement plans for railroad workers.9 The Supreme Court invalidated it in 1935 because Congress had no constitutional authority to regulate a business relationship between employer and employee. “We feel bound to hold that a pension plan thus imposed,” the Court wrote, “is in no proper sense a regulation of the activity of interstate transportation. It is an attempt for social ends to impose by sheer fiat non-contractual incidents upon the relation of employer and employee, not as a rule or regulation of commerce and transportation between the States, but as a means of assuring a particular class of employees against old age dependency.”10

  Later that same month, the Supreme Court ruled that sections of the National Industrial Recovery Act of 1933 were unconstitutional. In Schechter Poultry Corp. v. United States, frequently referred to as the “sick chicken” case, a unanimous Court determined that the commerce clause did not give Congress the power to enact a law that set the wages and hours of poultry slaughterhouse workers in Brooklyn, New York.11 The Court stated, “Defendants held the poultry at their slaughterhouse markets for slaughter and local sale to retail dealers and butchers who in turn sold directly to consumers. Neither the slaughtering nor the sales by defendants were transactions in interstate commerce.”12 Consequently, Congress did not have the power to regulate such business. The Court added:

  So far as the poultry here in question is concerned, the flow in interstate commerce had ceased. The poultry had come to a permanent rest within the State. It was held, used or sold by defendants in relation to any further transaction in interstate commerce and was not destined for transportation to other States.13

  The Supreme Court also underscored the “well established” test used for determining whether a law violated the commerce clause. If an intrastate transaction (a transaction within a state) “directly” affected interstate commerce, then Congress could regulate that type of transaction.14 Importantly, the unanimous Court also noted, “If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people.”15

  In 1936, in Carter v. Carter Coal Company, the Supreme Court ruled that another piece of New Deal legislation, the Bituminous Coal Conservation Act of 1935, was unconstitutional.16 The act created a national coal commission, coal districts, and “the fixing of all prices for bituminous coal, [including the fixing] of the wages, hours and working conditions of the miners throughout the country.”17 The Court again ruled that Congress did not have the power to regulate the relationship between employer and employee:

  Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby. But, in addition to what has just been said, the conclusive answer is that the evils are all local evils over which the federal government has no legislative control.18

  In these rulings, the Supreme Court was merely upholding the Constitution and preserving the constitutional balance of power between the federal government and the states. This was about to change. At a press conference, an unhappy Roosevelt said, “For the benefit of those of you who haven’t read through [the Supreme Court’s decision striking down the National Industrial Act of 1934] I think I can put it this way: The implications of this decision are much more important than almost certainly any decision of my lifetime or yours, more important than any decision probably since the Dred Scott case, because they bring the country as a whole up against a very practical question.”19

  Comparing the Supreme Court’s decision in the Schechter case with the judicial abomination that was Dred Scott was outrageous, but effective, politics against the Court. Roosevelt threatened to pack the Court by adding five new justices to its nine members. That threat, and the eventual turnover of the Court’s membership, led to the Supreme Court’s capitulation.

  In 1937, in NLRB (National Labor Relations Board) v. Jones & Laughlin Steel Corporation, the Supreme Court ruled that “intrastate activities that ‘have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions’ are within Congress’ power to regulate.”20 The legal stage was now set for a massive expansion of the commerce clause and federal government control over the marketplace.

  In 1942, the Court used Wickard v. Filburn for that very purpose.21 Roscoe Filburn owned and operated a small dairy farm in Ohio. Every year he would use a section of his land to grow wheat. A portion of the wheat was sold, a portion was fed to livestock (which were also sold), a portion was used to make flour, and the rest was used for seeding the following year. In every respect, Filburn’s
sale or use of his wheat occurred within the state of Ohio. In 1941, Filburn was assessed a penalty of $117.11 for exceeding the marketing quota established for his farm.22 It was part of the federal Agricultural Adjustment Act of 1938.23 Filburn challenged the penalty in court and the case reached the Supreme Court.

  Incredibly, Justice Robert Jackson, writing for a unanimous Court, ruled that Congress could regulate the amount of wheat that a farmer grew on his farm. The Court reasoned that Filburn’s wheat affected interstate commerce—even though none of it ever left the state of Ohio. The Court’s rationale was that: (1) Filburn grew excess wheat on his farm, as determined by a marketing quota established by the federal Agricultural Adjustment Act of 1938; (2) Filburn used that excess wheat to feed his livestock; (3) because of the excess wheat, Filburn would not have to purchase wheat on the open market; (4) by not purchasing wheat on the open market, Filburn was affecting interstate commerce. The Court wrote:

  It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.24

  Richard Epstein, professor of law at the University of Chicago, noted that though the “decision cannot pass the ‘giggle test,’” under its logic “just about anything” can be covered by the commerce clause.25 And for the next fifty years, the Supreme Court used the commerce clause as legal justification to uphold federal intrusion into “just about anything.” For example, in 1968, in Maryland v. Wirtz, the Court ruled that the federal Fair Labor Standards Act applied to state-run hospitals, nursing care facilities, and schools26 because “labor conditions in schools and hospitals can affect commerce.”27 It concluded that if Congress had a “rational basis” for enacting the law, the Court (and by fiat all lower courts) would uphold it.28

  Again, Epstein noted that the “rational basis test” is a “de facto death knell to a constitutional challenge that seeks to vindicate individual rights against government regulation” because all regulations passed by a legislature almost by definition must “have at least some benefits to commend them.” 29

  In 1971, in Perez v. United States, the Supreme Court upheld certain sections of the Consumer Credit Protection Act, making loan sharking a federal offense despite the fact that these activities were purely intrastate.30 In a vain and lone dissent, Justice Potter Stewart argued:

  But under the statute before us, a man can be convicted without any proof of interstate movement, of the use of the facilities of interstate commerce, or of facts showing that his conduct affected interstate commerce. I think the Framers of the Constitution never intended that the National Government might define as a crime and prosecute such wholly local activity through the enactment of federal criminal laws.31

  The benefits of retaining power at the state and local level and its implications for protecting individual liberties are considerable. As Professor Michael McConnell, now a federal judge, wrote:

  Assume there are only two states, with equal populations of 100 each. Assume further that 70 percent of State A, and only 40 percent of State B, wish to outlaw smoking in public buildings. The others are opposed. If the decision is made on a national basis by a majority rule, 110 people will be pleased, and 90 displeased. If a separate decision is made by majorities in each state, 130 will be pleased, and only 70 displeased. The level of satisfaction will be still greater if some smokers in State A decide to move to State B, and some anti-smokers in State B decide to move to State A.32

  State power also allows for societal solutions best suited to satisfy a given locality and permits experimentation with different public policy initiatives. The framers understood that the best way to address the wide variety of issues faced by any culture was not from the top down, but at the grassroots level.

  There have been recent but rare acknowledgments by a bare majority of the Supreme Court that it has strayed badly from the Constitution.

  In 1995, in United States v. Lopez, the Supreme Court considered whether it was constitutional to make possessing a firearm near a school zone a federal crime.33 In a glimmer of sanity, the Court struck down the law. Chief Justice William Rehnquist, writing for the majority, stated the obvious: “The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”34 No kidding. But it’s the Court’s past rulings that have made this an issue.

  Justice Stephen Breyer’s dissent is a perfect example of how activist judges don’t see their role as simply applying the Constitution, but promoting policies that they personally favor. Breyer wrote:

  For one thing, reports, hearings, and other readily available literature make clear that the problem of guns in and around schools is widespread and extremely serious. These materials report, for example, that four percent of American high school students (and six percent of inner-city high school students) carry a gun to school at least occasionally; that 12 percent of urban high school students have had guns fired at them; that 20 percent of those students have been threatened with guns; and that in any 6-month period, several hundred thousand schoolchildren are victims of violent crimes in or near their schools. Based on reports such as these, Congress obviously could have thought that guns and learning are mutually exclusive. Congress could therefore have found a substantial educational problem—teachers unable to teach, students unable to learn—and concluded that guns near schools contribute substantially to the size and scope of that problem.

  Having found that guns in schools significantly undermine the quality of education in our Nation’s classrooms, Congress could also have found, given the effect of education upon interstate and foreign commerce, that gun-related violence in and around schools is a commercial, as well as a human, problem. Education, although far more than a matter of economics, has long been inextricably intertwined with the Nation’s economy.35

  Breyer’s position is, in essence, that the commerce clause empowers Congress to supersede the Constitution’s limits on federal power without limitation. Keep in mind, state and local representatives have the power to outlaw gun possession near schools, and many have. They are more likely to reflect the viewpoints and desires of their communities. In some rural areas, it’s not unusual, for example, for parents or teachers to possess firearms near or on school property. But Breyer (and a majority of Congress) believes his policy preferences should be imposed on every state and local elected body in the nation.

  In 2000, in United States v. Morrison, the Supreme Court had another opportunity to reverse course. It was asked whether the Violence Against Women Act of 1994, which allowed victims of gender-based violence to sue in federal civil court, was constitutional based on the commerce clause.36

  Again, Rehnquist authored the majority’s decision and determined that “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity”37 of the sort Congress is authorized to regulate. Rehnquist added that if the link between gender-based violence and interstate commerce was upheld in this case, then as a practical matter, the Court would have to affirm that all crime is federal crime.38

  These two baby steps for judicial responsibility, however, have not established precedents beyond their specific cases, nor have they overturned the other Supreme Court rulings that have given the federal government a degree of power the founders rejected.

  The federal budget today exceeds $2.3 trillion a year—and that doesn’t factor in the continuing cost of federal regulations, statutes, and ru
les on individuals and businesses.39 Milton Friedman, the Nobel Prize–winning economist, has estimated that in addition to the 40 percent of our income that is taken and spent by government at all levels, we and American businesses spend an additional 10 percent of our income on government rules and mandates.40 A common barometer of this ever-increasing regulatory maze is the size of the Federal Register, the official compendium of federal rules. The Federal Register issued in 2002 set a new record at 75,606 pages, nearly a 9 percent increase over the previous year.41 This increase even tops the previous record set in 2000, the year Bill Clinton was pushing through “midnight regulations” in the last days of his presidency.42 In dollar terms, the Cato Institute, a libertarian think tank, has estimated that the cost of regulatory compliance to our economy is $860 billion a year. To put this number in perspective, that’s 8.2 percent of our gross domestic product,43 and exceeds the economic output of some entire countries, like Canada and Mexico.44

  Rather than upholding the Constitution, the Supreme Court has energetically helped Congress use the commerce clause to accumulate power at the expense of state and local authority, in direct violation of the Constitution. The framers wanted to increase commerce between the states and trade between their citizens. But the Court has turned the commerce clause into precisely the opposite—and worse: a vehicle to strengthen federal power, deny authority to the states, and deny liberty to the American people.