I've already written on the danger to our unalienable rights protected by the 7th and 10th Amendments from an abuse of the Commerce Clause in Article I, Section 8, Clause 3 of the Constitution. The clause states that the United States Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Too many conservative groups have looked on in silence as Congress and the courts have enabled federal preemption of state legislatures and state jury authority in favor of federal regulatory power, through the Commerce Clause in conjunction with the Supremacy Clause in Article VI. Even the libertarian Cato Institute has trumpeted the use of the Commerce Clause in federal preemption, with it's legal studies director proclaiming, "...if the Commerce Clause was meant for anything, it was meant to ensure the free flow of goods and services among the states, and jury trials can really make a mess of that if pharmaceutical companies, for example, have to have 50 different labels for warnings on their medications." The irony is that both ObamaCare and federal preemption rest, in large part, on an abuse of the Commerce Clause, which is lost on too many "experts" in Washington who attack the former (rightfully), but flip and defend the latter.
So it was interesting to see Supreme Court Justice Clarence Thomas issue a warning this week about the dangers of an unlimited Commerce Clause. Justice Thomas issued an unusually long dissent to the Court's denial of a request to hear a case in which the Commerce Clause was used as the basis to criminalize the purchase of body armor by those convicted of violent felonies. In the case of Alderman v. U.S. Justice Thomas disagreed with the lower court's ruling that the Supreme Court's 1977 decision in another Commerce Clause case, Scarborough v U.S., had enabled Congress to pass laws like the body armor ban. In criticizing the lower court, Thomas wrote, "That logic threatens the proper limits of Congress' commerce power and may allow Congress to exercise police powers that our Constitution reserves to the states."
With Justice Scalia in concurrence, Justice Thomas issued the following warning:
Further, the lower courts' reading of Scarborough... could very well remove any limit on the commerce power. The Ninth Circuit's interpretation of Scarborough seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw 'the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile onthe basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.' United States v Bishop, 66 F. 3d 569, 596 (CA3 1995) (Becker, J., concurring in part and dissenting in part). The Government actually conceded at oral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce. Such an expansion of federal authority would trespasson traditional state police powers.
Commentators are theorizing whether the majority of Justices were signaling their approval of ObamaCare through their refusal to take the Alderman case. Perhaps, and that would be bad enough, but my fear would extend way beyond ObamaCare to a number of provisions in the Bill of Rights. As I wrote on December 6, Founding Father George Mason warned of an unlimited federal government and a Congress which would "grant Monopolies in Trade & Commerce, constitute new Crimes, inflict unusual and severe Punishments, & extend their Powers as far as they shall think proper; so that the state Legislatures have no Security for their Powers now presumed to remain to them, or the People for their Rights." Might Congress interfere with the free exercise of religion, the right to free speech, or the right to bear arms by somehow tying the exercise of such rights to Congress' regulation of interstate commerce? How could the courts possibly balance Congress' unlimited discretion with our unalienable rights? What would stop Congress from exploiting an unlimited Commerce Clause to preempt even more fields of state commercial regulation, such as through the takeover of county health inspections by the FDA, with immunity for those businesses from local jury verdicts?
We've already seen Congresses of both parties take quick advantage of any authority to can establish under the Commerce Clause. When will the pendulum swing the other way?