Commerce clause is infinitely elastic

Denver Post (CO) ^ | 06/12/2005 | Ed Quillen

[Rodney King]

Scalia sold out his entire career and principles because he just had to impose his personal views on the drug war.

[El Gato]

It's remarkable, though, how so many "progressive" lawyers consider these many "80-year old" established precedents "inviolate"!

To lawyers, precedent is more important than what the Constitution, be it that of the US or a state, actually says. It's a nice racket, which will need to be stomped out sooner or later, preferably sooner.

[csmusaret]

I agree . Somewhere a long the line the Supreme Court has donned this undeserved mantle of infalibility. If the Supremes say something it becomes gospel written in stone for all time. BS! If that were true all decisions would be 9-0.

[El Gato]

There is no proving it, but I also suspect that some of the sitting members were threatened, bribed or blackmailed as well.

Several died, enough to swing the balance to the "New Deal" after FDR replaced them. In effect he packed the court, legally, without having to expand it, as he had threatened to do earlier.

[alpowolf]

Growing your own vegetables obviously affects the commerce of those agribusiness campaign contributors in California and Illinois. Compile your own computer's operating system, and you're affecting the interstate commerce of the Microsoft monopoly. Walking or bicycling to work instead of driving affects the income of multinational oil companies, and is thus a matter of interstate commerce. So is just about any other act of traditional American self-reliance.

No question about it, self-reliance is widely hated these days, pretty much at all levels of government but the feds are the worst.

[TKDietz]

How would that protect us from Congress acting outside the scope of the Constitution? I'm not against trying to figure out a way to overturn bad Supreme Court decisions but I still want some checks and balances on the legislative and executive branches of government. I like having an independent judiciary, but the problem with the way the system is now is that there are no checks and balances on the judicial branch of government.

[TKDietz]

It looks like Scalia was in agreement in one respect with Thomas because in the Raich case he took issue with the "substantial effects test" too. But the only thing Scalia didn't like was the "substantial" part. Looks to me like he is saying any effect is enough. I was really surprised to read that coming from him. I've pretty much lost all respect for the man.

[rmmcdaniell]

And interestingly (at least to me) the commerce clause became a plenary power on after FDR threatened to add justices to the court, to stack it in favor of his New Deal...kind of puts the whole idea of the "nuclear option" to shame...yes, FDR was a DEMOCRAT.

What I would like to see is a president that uses an "executive" form of the nuclear option.

It would work like this: Supremes uphold a blatently unconstitutional law such as this one. The president then simply uses his power of pardoning, holds a press conference and lets the country know than anyone who breaks the law for the remainder of his term will be instantly absolved.

[rmmcdaniell]

This is the problem with the Supreme Court. All you need is a group of morons making an idiotic decision like this and no amount of legislation can overturn it and it affects the future of the whole nation. Throughout our history the Supreme Court has made many idiotic decisions like this.

See post #28 for a solution that doesn't require an amendment.

[El Gato]

After a quick scan of The Opinion (Warning PDF file), it seems to me that the majority's argument can be stated as: Congress wants to regulate (modern meaning) something, obeying the Constitution, as written, would make that impossible, therefore the Constitution may be ignored, just as this Court has said many times before.

Never mind that "to regulate" had a somewhat different meaning than it does today. It meant, to make to function properly. Thus Congress could pass laws about shipping rates, conditions for acceptance of contracts across state and national borders, and so forth to facilitate the proper functioning of interstate and foreign commerce, rather than pass laws forbidding or restricting that commerce.

[maryz]

I gather from what I've read that Scalia is more willing to accept stare decisis than Thomas. I think he used that in part of his dissent on the Texas case -- I forget the name, about the TX law against homosexual activity. Only there it brought him down on the right side. I don't think he considers it an absolute, but Thomas is "radical" enough on this to scare the libs.

There is something to be said for stare decisis -- it would be chaos if every decision was made from scratch, at least with those current judges grasping at international law, "penumbras," etc. Of course, they're all willing to go with stare decisis when it suits their purposes, which are not normally the purposes of the Constitution.

With more decisions made on strict constitutional principles, though, stare decisis would have more to recommend it.

[TKDietz]

"To lawyers, precedent is more important than what the Constitution..."

I wish you guys would stop saying that. Clarance Thomas is a lawyer and he doesn't feel that way. The attorneys for Raich don't feel that way. I'm an attorney and I don't feel that way. We trial lawyers argue precedent because that is what we are stuck with. We don't make the laws. We do argue in some cases that the law we are dealing with is bad law, but generally we are going to fail with this type of argument. Higher courts do not like to overturn case law (or statutes for that matter) because they want stability in the law. Sudden major changes in the law can have a devastating effect on government and the private sector. If the Supreme Court were to suddenly say that the Commerce Clause only gives Congress authority to regulate interstate commerce as was originally intended a huge portion of federal law would then be considered unconstitutional and there would be some major upheaval within federal and state governments. This bad commerce clause law started building up back in the 1800's and bad law has piled on top of bad law piled on top of bad law. I personally think we need to tear the whole thing down and get back to the Constitution but I do understand the hesitation on the part of the Supreme Court to do that. Besides, these chuckleheads in black robes tend to think they are practically infallible and they have a hard time grasping the concept that they could be so wrong, that so much of that done before them could be so wrong. Their instinct is always going to run against changing that which was done before and they'll always resist making anything but small changes in the body of law that has developed rather than major sweeping changes.

[El Gato]

How would that protect us from Congress acting outside the scope of the Constitution?

Nothing, save perhaps the Second Amendment, will prevent that entirely. However allowing a 2/3 majority, plus the President, to overrule the Supreme Court would at least place a check on the SC. It would also not entirely over ride the check of the SC on Congress and the President, as that 2/3 would be harder to obtain than a simple majority. I'd make it 3/4 the same as the requirement for the state legislatures to ratify a Constitutional Amendment.

Of course when the SC, a majority of Congress and the President all agree on some unconstitutional scheme, such as McCain-Fiengold (CFR, We The People are pretty much screwed, at least until the "next election", which would include, in the worst case, the six year Senatorial cycle. By then it may be too late to change things by electoral means, especially when the law in question restricts access to information needed to make voting decisions.

[El Gato]

Supremes uphold a blatently unconstitutional law such as this one. The president then simply uses his power of pardoning, holds a press conference and lets the country know than anyone who breaks the law for the remainder of his term will be instantly absolved.

The only problem with that scenario, is that the other party in this case was the Attorney General of the United States, who could have declined to prosecute under the law, if the President felt the law unconstitutional. The President doesn't need to pardon people, he can order the AG to refuse to enforce the law in the first place.

[TKDietz]

I agree that stare decisis is important, but sometimes the higher courts need to do a little spring cleaning and get rid of the bad laws. The problem with being too rigid on stare decisis is that bad law begets bad law. It grows and grows until we have a huge body of bad law like we have on the Commerce Clause. At some point we need to knock the shaky foundation out from under it and start over. And I'm not looking for Congress or the Executive branch to do this. The federal government is all about grabbing power, not giving it up. I think though if we cut the power to regulate interstate commerce back to what was originally intended though that the federal government would still retain much of its power because it could always coerce states into abiding by its will by withholding federal monies, money that they've taken from us. States would also willingly delegate authority to the feds in areas where it makes more sense that a central government have control. But at least it would be clear that the feds have this power at our leisure, and not as a matter of right, and the feds would have to respect state sovereignty.

[rmmcdaniell]

The only problem with that scenario, is that the other party in this case was the Attorney General of the United States, who could have declined to prosecute under the law, if the President felt the law unconstitutional. The President doesn't need to pardon people, he can order the AG to refuse to enforce the law in the first place.

But could not a future AG prosecute if the lawbreaker wasn't pardoned?

[microgood]

How would that protect us from Congress acting outside the scope of the Constitution?

It may not in all cases. However, if the decision is very unpopular, at least the citizens can apply pressure to get the law changed. If the SCOTUS makes a really bad decision like this one, it is set in stone forever unless SCOTUS overturns itself later.

[Teslas Pigeon]

I think all it means is Scalia got one wrong. He has been a stalwart on the Court, fighting the good fight for almost 20 years. I am sure in that time there have been other decisions I would disagree with him on, but he is not a sellout.

[El Gato]

But could not a future AG prosecute if the lawbreaker wasn't pardoned?

Possibly, if the statute of limitations had not run out.

[Know your rights]

I think all it means is Scalia got one wrong.

As in 1+1=57 wrong.