We live in strange times, when an arcane rule of law may become a burning national interest. Well, ok - I used a rhetorical flourish to grab your interest. Sometimes law can be pretty dry, so please forgive me. But the U.S. Supreme Court is now deciding whether the commerce clause permits the federal government to compel Americans to enter contracts they don’t want. This is the biggest case of our lifetimes. That is no rhetorical flourish.
The law of accumulation, it has been said, results in the immiseration of the working class. Congress was probably well aware of this, when it funded the Spanish American War in 1898 by passing a tax only on the rich owners of telecom equipment. Congress finally let that point of immiseration go by the wayside in 2006. So as I see it, there is a Law of Accumulation of Laws, which keeps the Washington Department of Redundancy Department fully funded and operational. I guarantee that our founders knew a lot about the Law of Accumulation of Laws and immiseration, when they set the confines of federal power within the commerce clause, even though there were no coffee houses with intellectuals wearing goatees speaking those exact words. Thank goodness the American Revolution was a little different than that.
Supreme Court “tests” have made the original concept of commerce power so misshapen, that our Congress now views our voluntary and agreed upon mutual exchanges as the subject of compulsion. So let’s just start at the beginning, to see how we arrived here. “Congress shall have the power to … To regulate Commerce … among the several States …” U. S. Const., Art. I, §8, cl. 3. Yes, Martha, that’s all it says.
The word “Commerce” comes from the idea of being “with merchandise” (com--"with"; merci--"merchandise"). We as a nation thought about whether “Competitions of commerce” and predatory “regulations of trade” by any particular State might lead to an armed conflict, in deciding whether there should be a federal power over commerce, when Alexander Hamilton gave us “The Federalist,” No. 7. The framers looked at “commerce” and “trade” as essentially the same, interchangeable thing. We can also see in “The Federalist” No. 36 that the Americans ratifying the Constitution viewed agriculture, manufacturing and the professions as animals totally different from commerce. There, “Publius” discussed that federal "commercial impost” revenue would be entirely distinct from state taxes on such activities. Clearly, Mr. Hamilton thought it worthy to prevent the rise of the Department of Redundancy Department, with its “double sets of revenue officers, a duplication of their burdens by double taxations,” etc. So the States would keep police power to regulate internal trade, and the feds would get the power to regulate trade between the States. The States adopted the Constitution, and the rest is history.
The Supreme Court carefully to steered clear of regulating “internal trade,” in its first commerce power case, Gibbons v. Ogden. There, commerce power was enough to stop the immiseration New Jersey boat owners, when the Court found that a New York State steamship monopoly immpermissibly regulated commerce between the states. Buried deep in Gibbons, however, was a statement by Justice Marshall which remained asleep for over 75 years. Commerce power reaches to activities that, “affect other States.” Be warned, only trained professionals should read Gibbons.
The crack in time and space appeared again in 1905, this time with an “e”, when the Court found commerce power permitted federal regulation of Upton Sinclair’s meat packing Jungle in Swift& Co. v. US, because the trade restraining, price fixing “effect upon commerce among the States is not accidental, secondary, remote or merely probable.”
From there, the Court’s commerce power decisions began our national elevator ride to the Department of Redundancy Department. All Congress needs to do now is find a substantial effect on commerce, and it can emiserate (I thought I would try the verb form with an “e”) all of us by say, prolonging the Great Depression through stopping any one farmer from growing beloved waves of grain, like in Wickard v. Filburn. The whole test of commerce power now focuses on a word that just does not appear in the Constitution. So here we stand, more than 100 years after Swift, with easy commerce power tests, and Congress telling us we must buy health insurance, or else.
Maybe all is not lost, thanks to our Second Amendment buddies (RFNJ readers say “Yay!”). In US v. Lopez, the Court found that commerce power did not allow Congress to make it a federal crime to possess a gun in a school zone. In a concurring opinion, Justice Thomas presciently mused that, the “substantial effect on commerce” test, “if taken to its logical extreme, would give Congress a ‘police power’ over all aspects of American life.”
Our founders knew that governments make mistakes, so they divided up power, to help insure that policy errors stayed small. We adopted the Constitution, believing that the states alone could use police power to regulate everything but trade. The division of power among many federal States ensures that policy errors will become clear, if the economy of one State fails, while other States prosper.
But with an all-encompassing commerce power, the Department of Redundancy Department can make rules on just about anything. They act, and then the Ministry of Truth tells us they can do what they did because "Poof!", it “significantly effects” commerce between the States. So you can draw the curtain of immiseration and say goodnight, if the Court validates the individual mandate of Obamacare.