Questioning the Power of the Commerce Clause

Drew Kaplan ‘20, Associate Opinion Editor

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There has been a growing trend in the last century or so where the federal government has taken on more and more social function. The Department of Health and Human Services, Department of Education, Department of Housing and Urban Development, they are perform functions that, one or two hundred years ago, would have been squarely in the realm of the state.

The 10th Amendment 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.” Nowhere in the Constitution is the federal government authorized to perform many of the functions it does today. It takes an active reading of some clauses to justify some functions, such as providing healthcare, regulating firearms and providing student loans.

In 1942, the Supreme Court heard a case entitled Wickard v. Filburn, which dealt with the Commerce Clause. The Commerce Clause empowers Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. However, prior to 1942, it was not construed to affert intrastate commerce.

During World War II, Congress regulated the amount of wheat allowed to be grown per acre, in order to stabilize wheat prices. Mr. Roscoe Filburn, an Ohio farmer, grew more than his allotment, but argued that the additional wheat, beyond the quota, was only to be used on his farm as feed. It would never enter the market.

When faced with legal action, Filburn argued the law was unconstitutional, as Congress had overreached in the passage of the wheat quota law. The Supreme Court disagreed, ruling that even though the additional wheat would never enter the market, its production enabled Mr. Filburn to not purchase wheat to use as feed on the open market. Thus, his production beyond his quota did affect interstate commerce, and thus Congress was free to regulate it.

Now, the expansion of Congressional powers under the Commerce Cluase has allowed for the government to do great things, namely in the realms of healthcare and product safety. Without Wickard v. Filburn, it is not likely that the Affordable Care Act or the FDA would exist.

In 1964, an Alabama restraunteer named Ollie McKlung sued the federal government. He claimed that the federal government had no authority to force him to racially integrate his Birmingham restraunt, as he catered mainly to only residents of Alabama. However, the Court disagreed, citing that the inventory of his restraunt could be traced to out of state sources, and thus, his small restraunt was technically engaged in interstate commerce and was thus covered by the Civil Rights Act of 1964.

However, this expansion is a double edged sword, as it can be construed, and has been construed to give Congress unchecked authority in regulation. In 1995, a Texas high school senior was charged with violating a federal law that prohibited the posession of firearms on school grounds. He had carried an unloaded revolver into the school he attended, an act prohibited by a federal law justified via the Commerce Clause.

The Supreme Court struck this law down as exceeding the powers granted via the Commerce Clause. However, the Commerce Clause is an oft abused section of the Constitution to justify law.

The expanded Commerce Clause does allow for programs that are necessary in a modern country. I would hardly bat an eye if the U.S. adopted single payer healthcare.  However, I am also of the belief that the government is meant to serve the people, to provide for the people. As long as a behaivor does not affect another, I see no reason why it should be prohibited.

There is reason to be wary of a powerful authority, for in the wrong hands, there is potential for a deterioration into tyranny. Power inherently corrupts those imbued with it, and the trend from Washington has been to give itself more and more power. This power needn’t be harmful; it can and has been used for benevolent purposes. However, it is a slippery slope. Nearly anything can be construed to have an influence on interstate commerce, and thus fall under the perview of the Commerce Clause.

It is clear that government policy needs to keep pace with the changing times, and this can mean an expansion of government power. However, caution is needed with this expansion. I am of the belief that government, at least at the federal level, may give, but it cannot take away. Prohibition may be the correct course, but a blanket ban is better determined at a local level.

536 people, mostly white, mostly men, mostly old, cannot be trusted to create the rules for 320 million people. A nation of adults has the sense to avoid that which is harmful, and should a state, county or municipality seek to ban something, I feel that it may be permissible. The federal government, however cannot be afforded the same level of control, especially when the justification for this control is a Consitutional clause that is stretched well beyond any reasonable interpretation.

The place of the federal government cannot be to control the lives of citizens, but rather to provide for the physical safety and security of the citizens of the country. It took nearly 50 years before it was thought to challenge the authority granted to Congress through the Commerce Clause by the Supreme Court, an authority granted in the emergency of World War II.

Wickard v. Filburn, the case that started this expansion, came about at a time of national emergency, yet it has been used ever since to justify a growing system, a leviathan that, if not contrained so that it may do only that which benefits the people, will undoubtedly do nothing but harm and imprison the people.

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