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Constitutional Structure and the Modern Commerce Power

In my previous post, I wrote of how a broad commerce power is inconsistent with two significant structural features of the Constitution.  The first structural feature is that one should not read one enumerated power so broadly as to render the enumeration of all of Congress’s powers pointless.  If a broad commerce power places no limits on Congress’s power, then it is clearly mistaken.

The second structure feature applies in less extreme cases.  Even if Congress’s commerce power does have limits, it should not be read so broadly as to render many of the other enumerated powers surplusage.  This structural feature is based on an interpretive rule that was well known and followed at the Framing.

Prior to 1995, the standard progressive view of the commerce power was that the ample interstate Commerce Clause (granting Congress the power “to regulate commerce . . . among the several states”) is greatly expanded by the Necessary and Proper Clause to allow regulation of not merely interstate commerce, but also any intrastate activity that significantly affected interstate commerce.  This provided unlimited power to regulate.

In U.S. v. Lopez and U.S v. Morrison, the Supreme Court articulated a limitation on that standard argument, holding that small individual effects on interstate commerce can only be aggregated if the activity is one that is commercial or economic.  This placed some limit on the Commerce Clause, but Gonzalez v. Raich read the “economic” category so broadly that it may no longer operate as much of a limitation.  But even if Raich is not followed and the commerce power has a limit, it would still conflict with the second structural feature, rendering many of the enumerated powers redundant.

Let me just mention a few of these redundancies.  First, the Bankruptcy Clause, which provides Congress with the power to establish uniform laws on the subject of bankruptcies, would be surplusage.  Even under the Lopez commerce power, Congress could pass a law allowing bankruptcy for debts entered into in interstate commerce.  But it could also regulate debts entered into in intrastate commerce, because such debts (and their consequences, such as debtor prison, etc.) would affect the ability and tendency for people to enter into interstate commerce.  Congress could aggregate here because the activity – entering into debts – is commercial.  Significantly, the redundancy of the Bankruptcy Clause is even more damning, since the commerce power would avoid the limitations of the Bankruptcy Clause, which authorizes only “uniform laws on the subject of Bankruptcies.”

Second, the Patent and Copyright Clause would also be redundant.  Copyright and patent are both economic activities that would affect interstate commerce. And once again, whatever limitations the Patent and Copyright Clause contain, such as limiting copyright terms to “limited Times,” would be avoided.  In the 2003 case of Eldred v. Ashcroft, the fact that the statute at issue could have been justified under the commerce power was conveniently ignored by virtually all concerned.  Pay no attention to that oversized power in the corner!

Many other powers would also be redundant: the Foreign Commerce Clause, the Indian Commerce Clause, coining money, establishing post offices and post roads – all of these are economic activities that could be justified under the Lopez power.

One might continue the list, but the basic point is made – the enactors of the Constitution clearly did not believe the commerce power had the broad scope that even the Lopez Court permitted.

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