The Fraudulent Commerce Clause
At some point in every freedom-loving law student’s academic career comes a two-week period of outrage and bewilderment coinciding with lectures on the interstate commerce clause.
Article I, Section 8, Clause 3 of the constitution reads as follows:
“The Congress shall have Power …To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.“
During the drafting of the constitution, the founders were worried that the various States would implement tariffs and trade embargoes against one another. To prevent interstate trade warring, they vested the power to regulate such commerce to the federal government. If the founders had realized how dangerous and perverted the words “regulate commerce” would become after 1936, they certainly would not have penned it.
Following the great depression, President Roosevelt began implementing the New Deal in 1933. To quickly define the new deal for those uninitiated: the government now has the obligation to take control of the economy to stimulate growth. That wasn’t the deal before Roosevelt, but it’s the deal now. Roosevelt brought on farm subsidies, wage fixing, price fixing, make-work government construction projects, etc. as a means of stimulating the economy - though many economists believe that government intervention was the initial cause of the great depression and the new deal actually served to prolong the depression.
How could Roosevelt, in the face of the U.S. Constitution and the limited role of the federal government, implement all these socialist policies that directly violated states rights and personal liberty of contract? The interstate commerce clause - or so he thought. He met with immediate resistance from the Supreme Court, a majority of whom knew that the ‘power to regulate commerce among the States’ did not translate to fixing prices and setting minimum wages.
Roosevelt first ran into the pesky constitution when the Supreme Court struck down the National Industrial Recovery Act in the “Sick Chicken” case (Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935)). This case involved the conviction of Schechter Poultry Corp. for violating wage and hour provisions of the act, despite the fact that Schechter bought and sold its poultry ENTIRELY WITHIN the state of New York - not among States. The Supreme Court found this unconstitutional because the activity was neither in the current or affecting interstate commerce.
Roosevelt again was frustrated in the Carter Coal case, where the Supreme Court struck down the Bituminous Coal Conservation Act of 1935 - a law that set maximum hours and minimum wages for workers in coal mines. The court rightfully struck the act because it involved only an employer-employee relationship which is inherently a local activity and should be left to the States.
Not to be outdone, Roosevelt decided to strong-arm the Supremes and threatened to bust up the Court. He sought congressional authority to appoint an additional judge for all judges age 70 or older - at all levels of the federal judiciary. The Supreme Court had 6 such justices at the time, and, if Roosevelt had his way, he would have packed the court with socialist-minded individuals and we would have a 15-seat Court even today.
Never underestimate the weakness of judges in the face of political pressure. Roosevelt’s hostility lead to the retirement of Justice Van Devanter, and created a new majority on the court that suddenly viewed the commerce clause in a very different light.
The new court allowed the federal government to take totalitarian control over three forms of neo-interstate commerce: (1) anything that has a substantial economic effect on interstate commerce, (2) anything that, when accumulated, has an effect on interstate commerce. Stop right now and consider the things in your daily activity that fit in those categories. Brushing your teeth (think toothpaste: and of course the Fed is right there both regulating it with the FDA and taking it from you at the airports via the commerce clause). Using the internet. Driving. Watching T.V. Reading a book. Taking a shower. Wearing clothes. Cutting your hair. Going to school. Going to work. Working. You could even argue that sleeping, in aggregate, substantially affects interstate commerce. When you are asleep, you and millions of others are not being economically productive - a huge suppression of interstate commerce! Plus, think of how much money is in the sleep business: pillows, mattresses, doctors, Tylenol PM, etc. etc.
In 1937, the federal government could regulate all of it - and did - under the auspices of the commerce clause.
Some 90% of government programs are intended to regulate interstate commerce - FCC, EPA, Dept. of Energy, HUD, Dept. of Agriculture, HHS, Social Security, the FDIC, the SEC, and their countless related legislations. Even Michael Vick is now being prosecuted under the federal government’s “commerce clause” power to criminalize dog fighting (read how!).
It has even been suggested that the Federal government could essentially outlaw living by writing a law prohibiting living persons from buying or selling goods that have traveled through interstate commerce. In fact, a cursory search of the congressional record indicates that over 159 bills proposed in the most recent session of congress claim to relate to interstate commerce. Among the bills that congress inanely claims are related to the regulation of commerce among the states: The Suicide Prevention Act, Inhumane Trapping Prevention Act, Mercury in Dental Fillings Disclosure and Prohibition Act, Violent Crime Prevention and Enforcement Act, Gang Deterrence and Community Protection Act, Clean Water Restoration Act, Truth in Video Game Rating Act, Hate Crimes Prevention Act, Protection of University Governance Act, RU-486 Suspension and Review Act, Human Cloning Prohibition Act, Avocado Quality Assurance Act, Professional Boxing Amendments Act, Universal Health Care Choice and Access Act.
That’s right - when Universal Health Care comes beating down your door, you can thank FDR and the commerce clause run amok.
And to think: the commerce clause really was meant to prevent activities like stopping trucks at the state border and charging them taxes on their cargo.
(No Ratings Yet)
Loading ...Related Posts
- Time to Find a New Country?
- Reject Crime Registries
- South Carolina Rebels Against the RealID
- Faux FEMA
- Bush: Fighting AIDS Overseas With $30 bn of Your Money
No Responses to “The Fraudulent Commerce Clause”
No comments yet