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Originally Posted by #^&#^&#^&#^&#^&#^&#^&#^&#^&#^&#^&
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Unfortunately, the way the Justices have been "interpreting" the commerce clause since FDR's New Deal packed Court, Pelosi may be right.
For the first hundred plus years, such "interpretation" of commerce was not recognized.
The commerce clause in the Constitution gives the Congress power to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes. The main reason, at the time, for granting Congress that power regarding the States was to stop them from the practice of imposing tariffs and restrictions against each other. It was understood by the Court that congressional regulation was to be applied to
actual commerce and only that commerce that occurred
between, States (
interstate), not to what occurred
within a State (
intrastate) .
The FDR Court changed that with freakish lawyerese. It held in a case brought by a farmer who was fined for exceeding the "quota" of wheat he could grow, even though the great bulk of the crop was used for personal consumption. The Court decided that if he had not grown the crop for his own use, he would have had to buy it on the commercial market, which would have affected, in that miniscule way, the price of wheat, and that the aggregate of purely local production of goods, even if not intended for interstate commerce,
might, in the
aggregate have a substantial negative effect on interstate trade.
With that kind of "interpretation" the commerce clause became the primary source of Federal power. There was a brief respite from this judicial madness when the Court, under Renquist, struck down on appeal a Federal conviction of a high school boy who had brought a gun to shcool. The Feds argued that gun possession increased gun violence, which in turn produced less productive citizens, which in turn hurt the national economy. The kid was initially going to be prosecuted by a local court for violating a local ordinance, but the Federal Govt. chose to usurp that authority and could only do so using the commerce clause trick which had not failed since the FDR Court. Justice Jackson of that Court had written in a later memorandum that it "is within the federal power to regulate interstate commerce, if for no better reason than that the commerce clause is what Congress says it is." And Congress used that landmark decision as a club of all inclusive authority--PERIOD! It expected to easily win this case with that authority, but was surprisingly thwarted.
But it didn't take long before the Court was back on the track of expanding Federal power in a case involving home grown marijuana for personal medicinal use. Using the initial local production of wheat case as precedent, it decided that Congress had a rational basis for concluding that leaving home-consumed marijuana outside Federal control would similarly
affect price and market conditions. Justice Clarence Thomas noted in his dissent "respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed State lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the commerce clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers."
It is estimated that the number of Federal regulations that may be criminally enforced, greatly as a result of this use of the commerce clause, ranges from ten thousand to three hundred thousand.
The Court since FDR has viewed commerce, not as a commercial interaction as it was seen at the time the Constitution was written, but as
anything that
might affect economic activity even in the most remote way. If the suits against the HC bill can again strike an originalist or textualist chord in the Court, we may slowly creep back to a sanity that rightly limits the Central Government.
Hybrid Mode
