The Modern Commerce Power

One of the fixtures of modern constitutional law is an extremely broad commerce power (founded on both the Commerce Clause and the Necessary and Proper Clause).  Prior to US v. Lopez in 1995, this commerce power seemed to be essentially unlimited.  After Lopez, the commerce power is now only largely unlimited.  While Lopez placed limits on the power, Gonzales v. Raich may have a put a stake in the heart of Lopez (but perhaps the Court will treat Raich with the same respect it gave to Lopez).  The 2012 Obamacare case of NFIB v. Sebelius did seem to hold that Congress could not mandate commerce, but that power is unlikely to arise often (after all, Congress had never used it before).

The extremely broad commerce power seems obviously to be inconsistent with the original meaning.  Why?  Besides arguments based on the meaning of the terms of the relevant clauses, it is inconsistent with the structure of the Constitution – that is, with other constitutional clauses.

The most common criticism of the modern commerce power is that it is unlimited and therefore inconsistent with the enumeration of the federal powers.  Why, after all, list all of the powers if one has conferred unlimited authority on the federal government.  This is a strong argument, but it is limited – it can be answered so long as one admits that there are areas where the federal government lacks power.  It is a testament to how extreme the nationalist vision of the modern commerce power is – as articulated, for example, by Justice Breyer – that it is unwilling to acknowledge that there is any area that the commerce power cannot reach.  But a less extreme Justice could presumably answer the criticism by admitting areas where the commerce power does not extend.

But there is another powerful criticism that would apply not merely to the unlimited commerce power but also to a limited but very broad commerce power.  A very broad commerce power renders most of the other enumerated powers redundant.  Why have 18 different clauses, some of which containing more than one power, if one of the powers – the commerce power – renders many of the others surplusage?  While the argument against the unlimited commerce power is taken very seriously, this second argument about rendering other enumerated powers redundant is rarely mentioned.  My guess is that this second argument is too strong for judges who have accepted a broad commerce power (including most of the conservative justices) as a matter of either original meaning or precedent.  But this second argument is just as strong as the one against an unlimited commerce power as a matter of original meaning.

In my next post, I will discuss the argument in more detail.