The Cost of Doing Nothing
4th April 2011
James Madison once described the judiciary as “an impenetrable bulwark against every assumption of power in the legislative or executive.” Had he lived to see the Supreme Court’s sweeping definition of congressional power under the Commerce Clause, he might have revised that statement.
Does just sitting and doing nothing constitute ‘commerce’? Some think so.
Under Article I, Section 8 of the Constitution, Congress possesses the power “to regulate Commerce with foreign Nations, and among the several States, and with Indian tribes.” In the 1942 case Wickard v. Filburn, the Court held that the Commerce Clause allowed Congress to forbid farmer Roscoe Filburn from growing twice the amount of wheat permitted by the Agricultural Adjustment Act and then consuming that extra wheat on his own farm. In 2005, the Court reinforced this decision, holding in Gonzales v. Raich that medical marijuana cultivated and consumed entirely within the state of California still counted as commerce “among the several States” and was thus open to the depredations of the Controlled Substances Act. As Justice Clarence Thomas observed in his Raich dissent, “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.”
Welcome to the Obamanation.