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The Commerce Power and Constitutional Structure: Counterarguments

In my prior two posts here and here, I discussed why even the narrowest view of the commerce power under modern precedents – Lopez and Morrison – is inconsistent with the constitutional structure because that view renders several other enumerated powers redundant.  Here I discuss whether there are any counterarguments to my position.

One counterargument is that redundancy is not a serious matter since the Constitution contains clear redundancies.  I disagree with this view.  The standard way of writing formal legal documents, especially short ones, like the Constitution was to avoid redundancies.  As a result, courts interpreted the document to avoid reading it to contain surplusage – including in the landmark case of Marbury v. Madison.  (On the argument for following interpretive methods at the time, see here.)

It is true that the Constitution does contain a few redundancies, such as Congress’s power to establish inferior federal courts in both Article I, section 8 and in Article III, section 1.  Sometimes one can come up with an explanation for a redundancy — with the second provision added for clarification or as a limitation.  But if not, one must accept it as an oversight of the drafting process.  But the few redundancies that the Constitution contains should not be used as a justification for embracing redundancies or failing to regard redundancies as matters to be avoided.  That way lies clear misinterpretation.

Another counterargument is that the redundancies are the result of changed circumstances.  At the time of the Constitution, the commerce power was limited, but over time – due to the expansion of interstate commerce – the power came to be much broader.  Again, this has a grain of truth in it – interstate commerce certainly has grown since 1789.  The problem is that even under the degree of interstate commerce at the framing, the modern interpretations would still allow significant redundancies.  So long as a commercial activity had a substantial effect on interstate commerce, from an aggregation of individual actions, the activity could be regulated, and that would probably produce all of the examples of redundancies listed in my last post.

Reader Discussion

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on December 15, 2014 at 17:24:35 pm

The Bankruptcy Clause sure looks like a clarification or limitation to me. It's uniformity requirement was used to strike down legislation in 1982. The Court explained:

"[I]f we were to hold that Congress had the power to enact nonuniform bankruptcy laws pursuant to the Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws."

---Railway Labor Executives' Association v. Gibbons, 455 U.S. 457 (1982).

https://bulk.resource.org/courts.gov/c/US/455/455.US.457.80-1239.80-415.html

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Andrew Hyman
on December 16, 2014 at 00:42:56 am

Yes, that makes sense, but it is inconsistent with the broad commerce power. If Congress has the power under the commerce power (which contains no uniformity requirement), it need not use the bankruptcy clause. Simply saying that it will enforce the uniformity requirement of the bankruptcy clause is no answer -- it is ad hoc.

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Mike Rappaport
on December 16, 2014 at 07:58:59 am

Instead of characterizing the Bankruptcy Clause as a "limitation" or "clarification" of the Commerce Clause, why not characterize it as an "exception"?

The Bankruptcy Clause says: "The Congress shall have Power To...establish...uniform Laws on the subject of Bankruptcies throughout the United States...." I doubt that anyone would deny it's an exception to the Commerce Clause if it instead said:

"Congress shall have power to establish ONLY uniform laws, on the subject of bankruptcies, throughout the United States...."

Is the word "only" really necessary to render the Bankruptcy Clause an exception to the Commerce Clause? That is, to render the Bankruptcy Clause exclusive?

At first glance, the Commerce Clause (as interpreted by modern courts) authorizes nonuniform bankruptcy laws, but the Bankruptcy Clause seems to forbid them, so we have a conflict. Specific statutory language ordinarily trumps conflicting general language, so the Bankruptcy Clause should win, regardless of whether the uniformity limitation is ad hoc or not.

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Andrew Hyman
on December 17, 2014 at 09:15:15 am

Anderew, I guess we disagree about this one. The Bankruptcy Clause reads as a power, not a limitation on other powers (as other limitations in Article I, Section 9, for example, do). Given the mistaken reading of the commerce power, I understand the inclination to read it as a limitation on other powers. That might make sense under modern law. But it cannot change the obvious point that the commerce power is being read more broadly than the original meaning.

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Mike Rappaport
on December 17, 2014 at 09:34:17 am

Thanks Mike, I have an open mind about this whole thing, and am undecided about the scope of the.Commerce Clause. I just think that the superfluousness argument does not work well, given that the uniformity requirement in the Bankruotcy Clause is not redundant, ineffective, or unenforceable. Anyhow, other arguments may make the superfluousness argument superfluous. :-)

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Andrew Hyman

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