The Key Issue for the Court Isn't Abortion

[Emsworth]

The author makes a very good point. Although abortion is certainly important politically, its legal significance is not particularly great. Much more significant is the travesty of the destruction of federalism. Since Justice Owen Roberts' "switch in time to save nine," since Chief Justice Hughes' decision in NLRB v. Jones & Laughlin, the commerce clause has been interpreted as giving Congress carte blanche. In many cases, Congress has regulated activities that are commerce but not interstate; in others, it has regulated activities that are interstate but do not commerce; and in some, it has regulated activities that are neither commerce nor interstate.

Commerce clause powers have been carried to ridiculous extremes. In one instance, Congress passed a law that made rape a federal crime, on the grounds that it frightens women, thereby discouraging them from engaging in interstate commerce. In another, it passed a law punishing the possession of guns within school zones, on the grounds that, if the school environment were unsafe, students would have difficulty learning, and would in the future be unable to engage in high-quality interstate commerce by virtue of their lack of education.

These ridiculous extensions of congressional power have been struck down, but others have not. The war on drugs, labor laws, the minimum wage, federal restrictions on assisted suicide, federal environmental legislation--all of these are undoubtedly unconstitutional at the federal level, but the Supreme Court has done nothing as yet.

There were but three Justices who held reasonable interpretations on federalism issues: Rehnquist, O'Connor, and Thomas. Rehnquist's replacement seems to be pro-federal government; O'Connor's replacement is likely to be. This leaves only one Justice, Clarence Thomas, as a principled federalist.

[Emsworth]

If Congress has power ... to impose a minimum wage, then all state minimum wages are clearly unconstitutional.

Yes, that's clearly an invalid argument.

On the contrary, jfern, A18's argument is completely correct.

To quote Justice Story, "It has been settled upon the most solemn deliberation, that the power [to regulate interstate commerce] is exclusive in the government of the United States... A grant of a power to regulate necessarily excludes the action of all others, who would perform the same operation on the same thing. Regulation is designed to indicate the entire result, applying to those parts, which remain as they were, as well as to those, which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing, what the regulating power designs to have unbounded, as that, on which it has operated."

The power to regulate interstate commerce is not a concurrent power. It is vested completely and absolutely in Congress alone. Whatever Congress may regulate under the commerce clause, no state may interfere with, in any way whatsoever. This was settled (correctly) by the Supreme Court under John Marshall.

Therefore, if wages are subject to congressional regulation under the commerce clause, then it follows that they cannot be subject to state regulation.

[Emsworth]

Let me guess, you're also against states having stricter environmental laws? What's the point of having states if they can't do anything useful?

Clearly multiple levels of government can have laws that must be followed.  Just because the feds regulate cars doesn't mean that you won't get a parking ticket for violating local laws. If two laws exist with different minimums, clearly they are not contradictory, and the higher minimum is the law.

The power to regulate does not involve merely the power to impose rules. It also involves the power to keep something free from rules.

Regulation is designed to indicate the complete effect, the total result, of the rules relating to a particular activity. A state disturbs regulations just as much by adding to them, as by subtracting from them.

As it so happens, the federal government does not have the power to regulate wages, or pass environmental legislation, under the commerce clause. If it did, then state action in these areas would be forbidden.

National parks are unconstitutional, but the federal government has plenary power over its property.

Of course, there is no power to acquire property for the purpose of constructing a national park in the first place.

[Emsworth]

Umm, no, the federal government can pass said regulations, which require a minimum of certain standards. It says nothing about whether a state can impose tougher standards. If the federal government wanted to prevent that, then they'd pass a law stating the minimum wage was $5.15 an hour everywhere in the United States, regardless of locality.

Congress cannot delegate the power to regulate commerce to other bodies. The very first clause of the Constitution is, "All legislative Powers herein granted shall be vested in a Congress of the United States." Congress may not confer its power on other authorities, even states.

Thus, if Congress has the power to regulate commerce among the states, it may not transfer such power to the states. Therefore, if wages fell under "commerce ... among the states," then Congress, and Congress alone, may regulate them.

[Emsworth]

The Constitution specifically provides that all legislative powers granted therein "shall be vested in a Congress of the United States." Clearly, Congress cannot vest such powers elsewhere. It cannot transfer its legislative powers to the states, any more than it can transfer its legislative powers to the government of France, to the AFL-CIO, or to the Board of Directors of Microsoft.

Furthermore, when Congress chooses to not take action, it has decided that a particular commercial activity shall be free from rules. Remember, regulation is not only the imposition of rules, but also entails keeping things free from rules: it indicates the complete result. No state may add to or subtract from those rules that Congress has prescribed for interstate commerce.

[Emsworth]

Whilst I agree that this dichotomy is true: something is either interstate commerce or intrastate commerce, never both, it is worth noting that this restriction does not extend to the other powers - nobody would seriously suggest that only the federal government may build roads.

That's an interesting point. I would say that all powers granted under Article I, Section 8 are exclusive, except the concurrent powers to tax, to establish post offices and post roads, to grant copyrights and patents, to establish courts, and to make provisions with respect to the militia.

Furthermore, the powers to coin money, to declare war, to raise armies, and to raise a navy are not, in and of themselves, exclusive. However, the Constitution specifically does forbid states from taking all of these actions.