The United States Constitution gives very specific powers to congress. These powers are very limited and are each enumerated in the text of the Constitution. One of the powers is “[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes” (Article I, Section 8). This is the only reference in the constitution that speaks about commerce. The Tenth Amendment states that “[t]he 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.
By reading these statements in the constitution most people would believe that the states have enormous power to control the day to day activities within their state borders. James Madison, who was one of the biggest supporters of a powerful federal government, wrote the following in the Federalist Papers. “The powers delegated by the . . . Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people and the internal order, improvement, and prosperity of the State” (1778).
But “during oral arguments involving the application of the interstate commerce clause of the Constitution, Justice Antonin Scalia pressed the Solicitor General [Seth P. Waxman] to name a single activity or program that our modern-day Congress might undertake that would fall outside the bounds of the Constitution. The stunned Clinton appointee could not think of one” (Moore, 1999)
How did we get from federal powers that are few and defined to powers that have no bounds? One of the main reasons is the modern interpretation of the aforementioned commerce clause. The powers of the federal government have been further stretched Since the passage of the thirteenth amendment in 1913, that allowed the federal government to establish an income tax, governments powers have shifted from the state capitals to Washington D. C. This allowed congress to play Robin Hood, by taking from the rich and giving to the poor.
The federal government has gained substantial power though the very broad interpretation of the commerce clause. Any activity that “affects interstate commerce” (Schechter, 1935). is subject to federal regulation under the new interpretation. “[T]his . . . mean[s] that . . . constitutional power encompasses any activity that [changes] . . . the frequency of, or otherwise modifies, an . . . activity that crosses a state line. Thus, the power to regulate interstate commerce can apply to activities that take place wholly inside one state, but if and only if there is some nexus between the regulation of that activity and the passage of matter or energy across state lines.
This gives the congress enormous power to make laws that are far beyond what the constitution allows. “[N]othing in the Constitution allows Congress to force Federal courts to hear lawsuits involving a dispute between parties from the same state” (Reynolds, G.& Kopel, D., 2000). But in the 1824 United States Supreme Court decision Gibbons v. Ogden, the court ruled that only commerce “exclusively internal to a state and does not affect other States” was beyond the control of the national government. In Chief Justice Marshall’s reading he amplified that “[t]his power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitation, other than those which are prescribed in the Constitution.”
In its 1936 ruling on United States vs. Butler, the Supreme Court declared that farm subsidies and price controls were unconstitutional. President Franklin D. Roosevelt’s then had the opportunity to appoint seven of the nine chief justices in the 1930’s. He made his appointments with the intent of finding support for the policies of the New Deal legislation. It was during this time that the court determined that intrastate activities that “so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate”(NLRB, 1937).
“After its initial [farm subsidies] proposal was rejected, the New Deal Congress drafted another (nearly identical) program to fetter agricultural concerns to governmental control. Under tremendous political pressure to ‘save’ the poor farmers, the Court decided to flip-flop and ruled that the farm programs were legal under the premise that they constituted regulation of interstate commerce” (Allen, 1999). In the case, Wickard v. Filburn, the Supreme Court decided that the interstate commerce clause allows Congress to regulate wheat production, even if the wheat is never sold, and used only by the grower, citing that the demand for interstate wheat is decreased by his self consumption (Clarkson, K. Miller, R. Jentz, G. & Cross, F., 1998).
With that precedent in place congress was given the power to regulate almost any activity. The minimum wage and the 40-hour workweek were established by the Fair Labor Standards Act. The Civil rights act of 1964 was upheld in Heart of Atlanta Motel v. United States under the premise that the “the power of Congress to promote interstate commerce also includes the power to regulate . . . local activities”(Sheila, 1996). The court held that discrimination in public lodging burdens travelers and thus had a detrimental effect on interstate commerce. “The Commerce Clause also allowed the EPA to regulate the way toxic waste is handled, even if it remained in the plants. The logic: If the contaminants did accidentally leave the plants, they could damage the environment and hence interstate commerce”(McMenamin, 1998)
President Ronald Reagan appointed several justices to the Supreme Court. The conservative majority in the high court, lead by Chief Justice William Rehnquist, has since struck down several laws that attempt to apply the commerce clause to areas that have no real effect on commerce of any kind.
“Congress is not invested with the authority to cure all of the ills of mankind,” wrote federal judge Jackson Kiser in a 1996 decision (since reversed on appeal) striking down a law giving abused women the right to sue their attackers in federal court. “Its authority to act is limited by the Constitution, and the constitutional limits must be respected if our federal system is to survive.”(McMenamin, 1998)
The constitution ensures that one branch of government will not be able to abuse it’s power and become more powerful than the others. There is however one prevision that prevents the three branches from working together to ensure that the overall power of the federal government is enhanced. If the president hand selects judges that he knows will uphold the legislation that increases the power of congress beyond what the founding fathers intended.
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