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January 24, 2006

Comments

Good grief. I don't have time, nor after this straw-bashing do I particularly have the inclination, to write cogently, so trenchantly will have to do.

If you lack the relevant knowledge, what makes you "fairly sure"?

I didn't say I lacked relevant knowledge, I said I lacked the relevant knowledge to say with certainty. There's a whole lotta daylight between the two.

I don't know what occurred in the legislative debates over that bill; but neither are you, right?

Nope, but since you're the one making the (over-arching) universal claim here -- that would be that induction you so thoughtfully brought to my attention -- surely it would behoove you to check such things before dismissing them out of hand?

You've said that you're not familiar even with the most famous Supreme Court cases in this area...

Really? Where?

[Hint: I didn't.]

...surely you're not up to speed on congressional subcommittee reports from 1984, are you?

Nope. Are you? If not, again I ask how you're making this universal claim?

[And why restrict to congressional subcommittee reports, incidentally? Seems a little... unduly dismissive of the whole concept, really.]

...why do you think "everyone" agrees that Congress cannot directly regulate the intrastate use of alcohol?

If you'd read what I wrote, I didn't say "everyone", I said "pretty much everyone" and "most everyone". The modifiers are there for a reason; if you're going to quote me, please do it correctly.

As for why... well, I'll offer one mindbogglingly obvious reason, gratis: if a large number of people had thought that Congress could enact those particular things via direct legislation -- which, since you seem to have trouble responding to what I actually write, is a much more specific claim than "Congress cannot directly regulate the intrastate use of alcohol", although as you correctly note not as a specific a claim as I could have, and perhaps should have, made -- they probably would have, right? After all, they ended up with a budgetary end-run that accomplished much the same thing; I can't really imagine they did it that way just for the sheer hell of it, y'know?

Normally at this point I'd try to extend an olive branch to get the debate to proceed but since my rather mild request earlier was... rebuffed, I think I'll take a pass. Nonetheless, I'll point out (purely in the spirit of comity) that proceeding as if your interlocutors are either or stupid or ignorant -- especially when you're both offering definitions of logical fallacies and glossing over what people actually write -- is a surefire to convince people that you're either clueless or not worth responding to. I think you do have a good point lurking in there, just waiting for the the right combination of patience and precision to come out; a pity we're not likely to see it.

PS: FWIW, speaking in a semi-professional capacity... pretty much all your universal claims in this thread remain woefully unproven. I'd recommend shoring them up substantially, were I trying to convince anyone (beyond the choir) of them.

Fecch. Spent so much time on that response, my best efforts to the contrary, that I nearly started hunting down Congressional reports on it anyway. What a waste.

Anyhoo...

Anarch: are you a logician? We're in neighboring fields, then, sort of.

Yep. I'm primarily in mathematical logic, but I've done some things with more general logical reasoning (ironically, in an ad hoc sort of way) so I've dipped into the philosophy side too.

And Bernard? Boo! Shame.

Anarch: I only dipped into it enough to fulfill my grad school logic requirement, thereby discovering (a) that I had, in fact, been thinking logically all along, except that (b) I became known, in my study group, as "the scofflaw", for my ability to see the answer to problems, including (in outline form) how the proof had to go, without being able to explain, even in outline form, why I thought so.

Look, Anarch, if you say things like, "I lack the requisite SCOTUS knowledge -- and not just of the cases, but of the political reaction to those cases," then don't get so huffy that someone takes you at your word. If, on the other hand, you ARE familiar with Lopez, Morrison, and other Commerce Clause cases, why not mention that fact, rather than professing general ignorance about "SCOTUS"?

As for this: After all, they ended up with a budgetary end-run that accomplished much the same thing; I can't really imagine they did it that way just for the sheer hell of it, y'know?

Well, I can think of lots of reasons that Congress sometimes chooses to use its Spending Clause authority. 1) Just as good; accomplishes just as much; 2) Avoids debates with a few prickly congressional conservatives/libertarians who don't like direct federal authority but who acquiesce in federal spending power; 3) the bill happened to have been proposed in that fashion for no particular reason other than that a staffer wrote it that way; 4) Congressional Democrats were trying to compromise with Reagans. In any event, there are lots and lots of reasons that Congress would use its Spending Clause authority that do NOT even remotely imply (let alone prove, as you suggested) that "liberals," of all people, were philosophically opposed to using the Commerce Clause.

pretty much all your universal claims in this thread remain woefully unproven.

Universal claims? Such as that: Congressional liberals believe, for all practical purposes, that nothing is beyond congressional regulation under the Commerce Clause? Or that most liberals support Roe? If you're not familiar with those facts . . . wow. I might as well be asked to "prove" that the earth is generally round. Can't educated people generally assume that such things are common knowledge? It's quite laborious if one has to produce "proof" for even the most elementary and indisputable observations.

You're wrong about this, though, Charley: That is, had Raich gone the other way, the predominant wailing would have been on the conservative side.

The predominant wailing WAS on the conservative side, with Raich coming out the way it did.

Mr. Jackson, you are obviously not a logician. There is nothing inconsistent about mostly conservatives complaining about the actual result in Raich -- although I'm accepting your premise only for discussion's sake -- and my hypothesis that most of the complaints had Raich gone the other way would have come from conservatives. Because conservatives come in a few different flavors. Plenty of your God Hates Fags crowd is down with God Hates Hippies Too. I suspect that this faction outnumbers the folks who would rather see drug laws invalidated while the Commerce Clause is limited.

Discussions about the limits (or lack thereof) on the Commerce Clause are not about usurping Presidential power, of course. The President has only that authority in matters of commerce (foreign or domestic) that Congress gives him, and it cannot only give what it's got. Limiting congressional power in this area also limits presidential power.

"can only give what it's got"

To direct you away from my typos, I offer this from http://www.truthdig.com/dig/item/20060124_president_jonah/>Gore Vidal.

I should leave this well enough alone, but apparently I was unclear:

Congressional liberals believe, for all practical purposes, that nothing is beyond congressional regulation under the Commerce Clause? Or that most liberals support Roe? If you're not familiar with those facts . . . wow. I might as well be asked to "prove" that the earth is generally round.

Most liberals support Roe, yes. [Hence, once again, the use of the modifier "pretty much".] "Congressional liberals believe, for all practical purposes, that nothing is beyond congressional regulation under the Commerce Clause" is, however, precisely the claim under contention. You can't just smuggle that into the conversation under a blithe assumption of "common knowledge" since that's the friggin' question we've been talking about. Yeesh.

And fwiw, what I'm huffy about is a) your need to lecture people on logic and fallacies -- your "common knowledge" shot, incidentally, being a nice example of begging the question -- and b) your seeming inability to read what's actually been written. Since both are, IME, signs of someone who's uninterested in doing their share of the work in a conversation, this is pretty much where I'll end it.

Congressional liberals believe, for all practical purposes, that nothing is beyond congressional regulation under the Commerce Clause" is, however, precisely the claim under contention. You can't just smuggle that into the conversation under a blithe assumption of "common knowledge" since that's the friggin' question we've been talking about.

Well, yes, it's the claim under contention -- but only because some people seem to be unaware of what I thought was common knowledge.

It would be as if I happened to mention, "In the 1930s and 1940s, white Southerners supported segregation," expecting this to be an uncontroversial claim. But then, people came up with three types of responses:

1. Don't make generalizations.

2. What? Aren't you going to offer some proof? I've never heard of segregation myself, but I'm fairly sure that your claim is wrong.

3. That's not true. Why, there was a white bus conductor in Huntsville, Alabama in 1927 who let a black woman sit on the front of the bus on one occasion.


Anyway, let's recap, shall we? Lopez. Morrison. Raich. In all of these cases, the Supreme Court's liberals came down firmly on the side of the following proposition: A purely intrastate and non-commercial activity (such as owning a gun or possessing marijuana) can nonetheless be regulated under the INTERSTATE COMMERCE clause of the Constitution. The Court's liberals do not identify any plausible limiting principle here. Once you say, "The purely intrastate possession of an item can be regulated solely because of some hypothetical chain of effects that eventually touches on interstate commerce," you've given away the ballgame. There's NOTHING that would not be susceptible to the same reasoning. Put another way, every conceivable human activity would "affect" interstate commerce by that sort of reasoning, and would therefore be regulable by Congress.

Then look at public reaction to the majorities in Lopez and Morrison, where the conservatives on the Court won. Even though Lopez and Morrison were just two extremely modest decisions that still allowed Congress to do 99.99% of what it wants to do, liberals still complained to no end about the "federalism revolution." Here's a very typical article of the sort that would be familiar to anyone who reads the news, i.e., where Specter goes on and on about the enormous congressional discontent with Lopez and Morrison. Articles like this are a dime a dozen.

You'll no doubt say, "But liberals are right to fear that a more aggressive Court would then start to strike down environmental or other laws." That's all fine and well, but my point is unchanged: What's important here is that liberals always complain about Lopez and Morrison without ever identifying any limiting principle that would keep Congress from having unlimited power under the Commerce Clause. If you think I'm unfairly generalizing, why not humor me: Come up with one example of a liberal (scholarly or not) who actually describes how the Court can and should strike down congressional enactments under the Commerce Clause. In my experience, liberals never identify any such principle. It's always some complaint about "the radical Rehnquist Court," or "conservatives are the real judicial activists," or something like that. Always.

Anyway, all of this is why it should be completely uncontroversial -- common knowledge -- to point out that congressional and judicial liberals act as if Congress can regulate anything it pleases under the Commerce Clause.

This is absurd. Why am I getting into debates with people who refuse to believe the obvious? When I say that liberals believe in an expansive Commerce Clause that (for all practical purposes) has no limit, this (in any normal setting) would be about as controversial as pointing out that "Bush has pursued an interventionist foreign policy since 9/11," or "Democrats have been skittish about national health care plans since Hillary Clinton's experience," or "Republicans today are not living up to the 1994 Gingrichian rhetoric about limiting the size of government." I mean, these are things that any educated person would know from having read a million articles on related subjects.

Niels; It would be as if I happened to mention, "In the 1930s and 1940s, white Southerners supported segregation," expecting this to be an uncontroversial claim.

More as if you happened to mention "In the 1930s and 1940s, all Southerners supported segregation" and expected this to be uncontroversial and go uncontradicted.

Jes, I think you're wrong about that. Mr. J. need not say "all" to be overgeneralizing.

It wouldn't be unreasonable, though, in discussing Mr. J.'s statement, to point out the extent of (a) support for segregation among whites in the North in the 30s and 40s -- which was not trivial; and (b) opposition to (or indifference towards) segregation in the South -- not trivial, but maybe not great either.

Whether either point is material depends on the context of Mr. J.'s remark. If he's contrasting support for segregation in the 30s and 40s with support now, the overgeneralization isn't harmful, really. If the context shows him singling out Southerners as opposed to people from other regions, the generalization could well be unfair. (I assume for sake of argument that a majority of people in Indiana, for example, supported segregation in the 30s and 40s. I'd not be surprised to find majority support for segregation in the 30s and 40 just about everywhere, although not as strong in some places as others). Even the blandest generalization can become problematic, maybe even wrong, in the right context.

The real trouble here is the sample size (only a couple of opinions), and the availability of other basis (than a position of no limits to the Commerce Clause) for the positions taken. I can say that I think the statutes in Lopez and Morrison were OK without necessarily meaning that I don't think there are any limits at all to the CC. (I just re-read the dissents in http://supct.law.cornell.edu/supct/html/99-5.ZD1.html>Morrison. They're both pretty good.)

I'd be interested to know, though, if Mr. Jackson thinks that a federal ban on all abortion is permissible under his reading of the Commerce Clause. (Assuming, of course, the impending end of due process impediments to such a statute).

Charley -- a sample size of two? Come on. There are three relevant Supreme Court opinions, lots of lower court opinions (like Rybar), zillions of news articles and law review articles (by law professors) over the past decade, and zillions of advocacy pieces by liberal groups like PFAW or Alliance for Justice. I can't prove a universal negative, but I have never seen any liberal -- whether a judge, a politician, a law professor, or a commentator -- who said, "Yes, the Commerce Clause has clear limits, and here's how the Supreme Court could create a doctrine that doesn't effectively sweep in anything and everything."

Why am I getting into debates with people who refuse to believe the obvious?
Perhaps because it's obvious you're unwilling to back up such "obvious" things with anything beyond either a variation of "Because I say so," or being insulting?

I'd be interested to know, though, if Mr. Jackson thinks that a federal ban on all abortion is permissible under his reading of the Commerce Clause.

Still interested.

Just for the record, I think a federal ban on abortion would be within the commerce power...

You know, you can make an plausible argument that liberals are lax about the constitutionality of economic regulations. You can also make a decent argument that they are lax about the constitutionality of laws that exceed enumerated powers as opposed to violating individual rights.

But those just aren't the same things as an argument that liberals want the president to have no powers and the legislature to have all powers. That was the initial assertion, and you never really defended it.

"When I say that liberals believe in an expansive Commerce Clause that (for all practical purposes) has no limit, this (in any normal setting) would be about as controversial as pointing out that "Bush has pursued an interventionist foreign policy since 9/11," or "Democrats have been skittish about national health care plans since Hillary Clinton's experience," or "Republicans today are not living up to the 1994 Gingrichian rhetoric about limiting the size of government." I mean, these are things that any educated person would know from having read a million articles on related subjects."

This is definitely true.

"There's no contradiction in observing the palpably obvious fact that: 1) When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power; 2) When it comes to Due Process, liberals are happy (usually) to have judges make up new constitutional rights (e.g., abortion, gay marriage) and impose those rights on an unwilling citizenry."

This is true so long as you are sure to insert the 'usually'.

"And conversely, the liberals in the Senate and on the Supreme Court oppose ANY instance in which a judge proposes to allow the Commerce Clause to mean anything more than, "Congress can do what it damn well pleases, because everything ultimately affects interstate commerce in some fashion"

That one, however is false--some liberals are ok with state rules on growing pot plants or euthanasia for instance.

I'm on your side Niels. I don't think much of what currently passes for liberal jurisprudence--especially as understood by Democratic Senators. But there is no need to overplay the flaws. They are disasterous enough as is. You could say "there is no commonly articulated limit on Congressional power as understood by liberal jurists and commentators" and you would have had a much stronger argument. You could say "there are no commonly articulated limits on the judicial power of expanding personal rights directly in opposition to both current democratic understanding of the issue and past understanding of the Constitution in liberal jurisprudence" and you would be correct.

No need to overstate. The simple reality is ugly enough.

Whoops, I was overpowered by context but I didn't refer to it:

"there is no commonly articulated limit on Congressional power as understood by liberal jurists and commentators"

should really read "The Commerce Clause offers no commonly articulated limit on Congressional power as understood by liberal jurists and commentators..."

Seb: remember also to modify this bit:

"When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power"

I know of no one (or: no one who knows enough about the Constitution to know that there is a commerce clause) who believes this. "Completely blank check"? "Horrifying to contemplate ANY limits"? Completely nuts. And it's what everyone is objecting to.

I also happily adduce the compelling counterexample of -> ME! <-

THanks, Sebastian, and I agree with your clarifications.

Charley: Abortion is an act of commerce, which in itself is a far cry from the mere possession of an item in your home. But it's not necessarily "interstate," and I'm not comfortable with federal regulation of purely intrastate commerce. But under current caselaw, abortion would be an absolutely easy case for federal regulation.

I also happily adduce the compelling counterexample of -> ME! <-

*is compelled*

I am struck by the phrase "impose those rights on an unwilling citizenry".

Impose rights on citizens?

Isn't that sort of like imposing freedom, , or autonomy and personal responsibility for decision making?

Also I question the "unwilling" since, at least in terms of abortion, most Americans do not feel imposed upon by right to choose.

Isn't the issue here not that rights were imposed on citizens but that government was restricted in its power, thereby leaving the power to the citizens?

I'm not a lawyer and don't have any opinion about the commerce clause or its applications or lack of application, in the lawyerly sense. I'm just struck by the view that the limiting of the power of government to make personal decisions for someone could be called the "imposing of rights"

Was the government imposing the right to use birth control in the Griswold decision? I'm pretty sure most Americans would be absolutely outraged if any government entity at any level tried to restrict the access of adults to birthcontrol. My mom and dad, by the way, used to have to drive into NYC to buy condoms because even married couples couldn't get them in New Jersey.

Anarch: that's a relief. I thought, as I posted that, 'I didn't say compelling to everyone...', but then, after hitting 'post', thought: but what if I'm not compelling to anyone? What becomes of my claim then?

Now my claim is true. Phew!

Niels,
just out of curiosity, I'm hoping you could outline your understanding of what the Commerce Clause covers. Imagine you've been made all of the members of the Supreme Court (Think "I sing the body electric') and you get to tell everyone precisely what the Commerce Clause should and should not cover. Marijuana? Backyard wheat? Machine guns? Cigarettes? Indian Gaming? I get the impression you feel there is obviously a bright line, so I'm hoping you could explain it to me.

Katherine: that liberals want the president to have no powers and the legislature to have all powers. That was the initial assertion, and you never really defended it.

No, that wasn't the initial assertion at all. The initial assertion came because of your post of Feingold's statement. To which I responded by pointing out that it made quite a contrast that in the Alito hearings, liberals seem to rely on two propositions: 1) The Court should NOT dare to question Congress's constitutional authority under Article I of the Constitution; but at the same time, 2) The Court should NOT dare to let any questions of presidential authority under Article II go unaddressed because of justiciability concerns or the political question doctrine.

Now, this could have been an interesting discussion if anyone were willing or able to address the merits of that point, rather than engaging in wholesale nitpicking. Perhaps someone could have said, "There are good reasons why one should take an expansive view of congressional authority but not so expansive a view of presidential authority," and then explained what those reasons might be. Or someone could have taken up the role-of-the-Court point: "Here's why the Court is institutionally better suited to addressing claims of presidential authority but ill-suited for limiting the scope of Congress's authority."

Neither of the two propositions you posit are in any way, shape or form true, Niels.

Neither of WHICH propositions? The two propositions in my first paragraph? Or my second? If you're talking about the first paragraph, well, you're not disagreeing with me. You're disagreeing with the Senate's liberals. And if the second paragraph, then again, you're disagreeing with any potential explanation for the Senate liberals' apparent hypocrisy.

I take it, then, that you agree with me.

Anyone else?

If "Prodigal" was hamhandedly attempting to suggest that the Senate's liberals do not, themselves, believe in either of those two propositions in any way -- please. How clueless. As I said above, here's a very typical article where Specter goes on and on about the enormous congressional discontent with Lopez and Morrison. You can find a million similar articles. And for the second proposition (i.e., that the Court MUST limit presidential power even at the expense of traditional doctrines of justiciability, etc.), see the Feingold statement quoted upthread. Feingold -- again, very typically -- finds it "troubling" and "disturbing" that Alito thinks there is any conceivable case where the Supreme Court might NOT "weigh in on these serious legal battles between the legislature and the executive."

Like I said, there could be an interesting discussion if anyone was willing or able to address this patent discrepancy in how Senatorial liberals view the role of the Court. There may be perfectly good explanations for it. Can't someone give it a shot?

From that article:

The Pennsylvania Republican said in the letter that he sees "a great deal of popular and congressional dissatisfaction with the judicial activism" that trimmed congressional authority under the Commerce Clause. Specter characterized lawmakers as "irate about the court's denigrating and, really, disrespectful statements about Congress' competence" in several recent cases.

* * * In a thinly veiled warning, he wrote of what he sees as "the Senate's determination to confirm new justices who will respect Congress' constitutional role."

Use your heads, folks! Lopez and Morrison were the first two cases in 60-odd years where the Supreme Court said that anything was beyond Congress's constitutional power. Thanks to Lopez and Morrison, you could scratch out maybe one page from the United States Code -- leaving hundreds of thousands of pages of laws left (enough to fill a wall-sized bookshelf, if you've ever seen the entire United States Code).

So how is it not fair to ask: Where would congressional liberals have the Supreme Court draw the line? It really wouldn't be possible for the Supreme Court to do any LESS in this area, other than to NOT RULE AT ALL. Which is exactly my point: Congressional liberals don't want the Supreme Court looking over their shoulder and telling them that they can't regulate something.

Anyway, the best explanation that I see for the discrepancy identified above is this: Sheer institutional self-interest. All of of the process of checks and balances. Of course Congress (as a general matter) prefers for the Court to restrain the President but to leave them free to regulate to their heart's content. Who wouldn't want that? Likewise, of course the President prefers for the Supreme Court to leave him alone and/or to allow him greater powers. And for that matter, you're not going to find much enthusiasm on the Supreme Court for Congress to start exercising its constitutional prerogative to create "Exceptions and Regulations" as to the Supreme Court's jurisdiction.

Each branch of government has its own institutional self-interest. They're not necessarily being hypocritical. They're just playing the game of checks and balances. Given that each branch sees the other branches exerting "too much" authority, the temptation is to 1) wish the other branches could be restrained, and/or 2) try to exert more authority yourself.

Now I'm sure there are lots of objections to my defense of Congress's attitude here. Can any of you improve on it? Take the discussion to something more meaningful here (as opposed to the usual head-in-the-sand denials of common knowledge).

Can any of you improve on it?

I'm still trying to figure out precisely what you are saying and what exactly is common knowledge. IANAL, but I am a liberal (though not a congressional one, mind you), and I find myself pretty surprised by the claim that my bedrock principles revolve around the Commerce Clause. My feeling is that legislators, well, legislate and that requires some sort of assertion that they can write laws about something. Absent that, there's not much they can do. So, I ask again, what do you think the Commerce Clause covers and what does it not cover and why?

I was referring to the claims you made in the post immediately preceding mine, Niels, neither of which were true.

So could you try to be slightly less condescending, at least until you start posting some facts rather than strawmen?

"My feeling is that legislators, well, legislate and that requires some sort of assertion that they can write laws about something. Absent that, there's not much they can do."

That isn't what the Constitution says. It has specifically ennumerated powers for Congress and they are in total:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Pretty much everything else was left to the states.

Note by the way that a huge majority of the ennumerated powers have to do with borders or the military.

lily: Isn't the issue here not that rights were imposed on citizens but that government was restricted in its power, thereby leaving the power to the citizens?

Yes. :-)

Hilzoy: I also happily adduce the compelling counterexample of -> ME! <-

*is also compelled*

That isn't what the Constitution says. It has specifically ennumerated powers for Congress and they are in total:

Sebastian,
Again, IANAL, so excuse the probably silly question, but are you saying that Congress shouldn't be making virtually all the laws it has, except primarily those related to borders and the military? I promise, this is not snark, but it seems that the assertion Niels has made is that the Commerce clause is at the root of every problem caused by liberals which has, at its root the overstepping the limits the founding fathers developed. I know you have reined that in a little, but this strikes me as one of those libertarian arguments that has some surface plausibility but then gets taken way too far. I certainly don't demand that you answer for Niels, but where do you see the plausible line drawn by the Commerce Clause?

I don't see how it can be a libertarian argument because the rulings which upset conservatives and which come from the commerce clause often had the effect of limiting government power and "imposing rights on citizens". Isn't the imposition of rights on citizens by limiting government power the whole point of libertarianism?

SH, I guess it all depends on what Commerce means. Do you think a federal ban on all* abortion would be within Congress' power under your view the Commerce Clause?

(I don't need to ask what you think the result would be under current CC jurisprudence -- this is more obvious that any proposition offered above for obviousness).

*By "all," I mean those that are interstate (Virginia woman comes to Maryland for the procedure), intrastate (Maryland woman has procedure done in Maryland), and non-commercial (neice of retired doctor who lives in Maryland has procedure done in Maryland at no charge).

Well, it seems that no one is interested in (or capable of) addressing my main point, even with the head start that I provided (i.e., the institutional self-interest point). I'm not that interested in conducting a debate with myself here -- pointing out Democratic hypocrisy on one hand, and then defending the Democrats on the other. So if no one is willing or able to act like an educated observer of the political scene, and to have a discussion on that basis, I'll bow out.

Well, it seems that no one is interested in (or capable of) addressing my main point, even with the head start that I provided (i.e., the institutional self-interest point). I'm not that interested in conducting a debate with myself here -- pointing out Democratic hypocrisy on one hand, and then defending the Democrats on the other. So if no one is willing or able to act like an educated observer of the political scene, and to have a discussion on that basis, I'll bow out.

it seems that no one is interested in (or capable of) addressing my main point, even with the head start that I provided

If you start answering polite questions posed and reposed, you might get an addressing of your main point, but until then, I think you actually are more interested in conducting a debate with yourself. Don't worry, though, it really doesn't make hair grow on your palms...

LJ: Thanks for asking, but what I personally believe the Commerce Clause covers is completely irrelevant. Why am I obligated to take every detour thrown in my way?

LJ: An analogy: Imagine that I had said something like this, "Isn't it odd that Republicans constantly preach the virtues of federalism, and yet Ashcroft wanted to override Oregon's legalization of assisted suicide?"

A banal and trite point, one that has been made on a thousand (if not a million) liberal blogs by now.

And what if the responses were these:

1. Careful, now. Don't generalize about what Republicans believe. [Hilzoy]

2. Who says Republicans preach about federalism? That isn't true in any shape or form. Prove it. And while you're at it, who says that Ashcroft did anything here? Prove that too. [Prodigal]

3. I don't know anything about federalism, but I'm sure that you're wrong. [Anarch]

4. Well, what about you! What do YOU believe about federalism? [This is you, LJ, as well as Charley.]

Can you not see how frustrating that would be? Particularly when one had started out with a observation that would be obvious to the point of banality, at least to anyone who was not determined to be maximally difficult.

Whereas from our point of view it seems like:

You know, all Republicans believe that there is no such thing as commerce, and thus that nothing falls under the interstate commerce clause.

-- Huh? Who thinks that, exactly?

Well, it's common knowledge.

-- Not to me, it isn't. Could you explain who you're talking about? Just a name?

I can't believe I'm having this conversation. Anyone who knows anything knows that Republicans deny the existence of commerce.

-- Please, if you could give us a single cite, it would help a lot. Honestly, I've been a republican all my life, and I have never heard any Republican deny the existence of commerce, ever.

Puh-leez. Clearly you live in some alternate universe. Otherwise you'd know that Republicans don't believe in commerce! Everyone who lives in the real world does.


Etc., etc., etc.

Are there articulated limits to the commerce clause in liberal jurisprudence?

I apparently am not as familiar with the Commerce Clause as I should be, seeing as how it is the root of all liberal evil, so I did want to provide an interesting link to the Lewis and Clark Law Journal issue on 'Federalism after Gonzales v. Raich'. I hasten to add that I don't adduce any of these points of view to represent Niels Jackson's opinions, which, as he himself noted (and I agree with him totally on this), are completely irrelevant.

Oh, and I didn't mean to dodge the question to me. I don't think any of the following are interstate commerce under normal circumstances:

Abortion
Pot growing for personal use
Euthanasia

And by the way, I really really don't like two out of the three, and the pot growing I just sort-of don't like.

The interstate commerce clause shouldn't be a nullity.

So if no one is willing or able to act like an educated observer of the political scene, and to have a discussion on that basis, I'll bow out.

Plenty of people are willing to have a discussion on that basis, they just aren't willing to have that discussion with you.

thanks Sebastian, I agree with you on all of the above, though obviously my feelings towards the actual acts themselves are a bit different. I thought the Pushaw article in the link I gave was interesting in proposing a 'Neo-Federalist' perspective. And he writes
Although the use of a Neo-Federalist methodology would result in sustaining most modern enactments under the Commerce Clause, it would prevent Congress from continuing its recent pattern of adopting crowd-pleasing
laws that do not regulate interstate commerce in any meaningful way. Most crucially, it would halt the federalization of noncommercial and local crimes already prohibited by the states, such as gun possession near schools, sexual assault, arson, and carjacking. I hasten to add, however, that Congress can
deal with crimes that involve the voluntary sale of goods (like illegal drugs and
guns) and services (e.g., loan sharking and prostitution).Thus, the proposed
approach would confine Congress to its proper constitutional role of regulating
true "commerce" that flows interstate, not any social issue that appears to be
politically compelling.

That seems right-ish (as in correct) and I think this is insightful in locating the urge to overextend the Commerce Clause within a crowd pleasing motivation rather than a liberal or conservative persuasion.

What do you and anyone else make of this? I also failed to point out that both Randy Barnett of Volokh does the preface and Glen Reynolds of you-know-where is a co-author, as well as a few other conservative names.

Sebastian: I agree with you on all three as well, though in the case of marijuana growing I almost immediately think: well, what about that case involving wheat grown for personal consumption, which seemed to be exactly like the pot case except for the plant species involved? I think that was wrongly decided, based on my nearly nonexistent understanding of the relevant precedents to it, but what role should I give it as a precedent? (My views on stare decisis being roughly: it matters, since continuity and predictability matter in the law, but how much? I have no idea.)

Hilzoy:

The obvious rejoinder to your post is that the following two propositions are not at all analogous:

"all Republicans believe that there is no such thing as commerce, and thus that nothing falls under the interstate commerce clause."

"For all practical purposes, congressional Democrats act as if everything either directly involves, or remotely affects, interstate commerce, and they are highly resentful of any court decision that puts any boundaries on the Commerce Clause AT ALL, no matter how loose."


The former proposition -- yours -- is patently silly. The latter proposition -- mine -- is patently true, as anyone who reads the news would know. Congressional Democrats DO resent any court decision that puts ANY limits on the Commerce Clause, which is exactly why they howled about Lopez, and gave Alito a lot of hostile questioning about his Rybar decision.

And if my proposition is so easily disputable, I'll ask this again: Find ONE congressional Democrat who has EVER agreed with a court decision imposing ANY limits on the Commerce Clause. Just one. This should be a simple task, if you're right.

LJ: It is a particularly silly misreading to claim that I said that the Commerce Clause is "the root of all liberal evil." For the umpteenth time, I did not say anything of the sort, nor did I express a personal opinion on the Commerce Clause. Frankly, I'm not sure how to draw the line. But that is irrelevant to the purely factual point that: Congressional Democrats do not like courts drawing a line, no matter what. This point is indisputable.

And given that congressional Democrats don't like courts drawing a line -- any line -- regarding congressional power under Article I, why are they so eager for the courts to draw a line regarding presidential power under Article II?

I've provided one answer: Institutional self-interest. But no one else seems to be able to grasp the question.

"But no one else seems to be able to grasp the question."

What can you expect of us petty and inferior minds, really? Clearly, by now you have come to understand your vastly superior ability to grasp, analyze, and correctly understand situations and people, and have realized that few people here, if any, are capable of following the brilliance of your magnificent brain and its eminently deep and subtle reasoning, let alone match your sweeping grasp of the necessary facts.

I'm sure you'll soon realize the futility of expecting ignorant inferiors to be able to keep up with your own powerfully driving intellect, and you'll draw the appropriate conclusions. Any superior mind would, of course.

Person A: "Faction X thinks law Y does not mean what I think it obviously means, and this shows their bad faith."

Person B: "Hey, don't people not in Faction X frequently make essentially the same assertions about law Y when it serves their interest? Many, for example, assert that law Y covers situation Z (applying the same reasoning as those of Faction X to law Y generally):* I know you have strong views about situation Z, do you agree that law Y covers situation Z?"

Person C: [after A's ducking, then disparaging the latter question] No.

Person B: [to self] OK, then, no surprise here -- Person C generally tries and often succeeds in putting principle over interest. I don't 'know' Person A nearly as well; can this be said of Preson A? Person A doesn't owe me a response, of course, but I can certainly draw an inference from his unwillingness to offer one.

* E.g., Republicans in Congress, in passing the Partial-Birth Abortion Ban Act of 2003.

Mr. Farber -- sorry if my condescension sparked even greater condescension in you. But it is quite exasperating when one's disputants 1) consistently misrepresent my position (i.e., claiming that I had said that the liberal position is evil); 2) deny the obvious (such as that congressional Democrats don't like judicial enforcement of the Commerce Clause, even though there is ZERO evidence that Democrats favor such judicial enforcement and thousands of news articles to the contrary); 3) continually change the subject (i.e., asking me for my personal opinion on the Commerce Clause); 4) all while NEVER MANAGING TO ADDRESS THE QUESTION.

Charley: I'm having trouble following your letter designations and figuring out who is represented there. Anyway: 1) to the extent you are claiming that I imputed "bad faith" to the Democrats, I deny it. If I wrote words that imply bad faith, I retract them. Hell, I'm the only person who managed to come up with a genuine good faith reason that Congressional Democrats would take opposite positions on whether the Supreme Court should enforce [congressional limits vs. presidential limits]. 2) To the extent that you are claiming that Republicans disregard the Commerce Clause when it suits their interests: Damn right. But so what? Pointing out a tu quoque might make you feel more satisfied, but how is it relevant to my question?

Continuation of my pointless little dialogue:

-- But that's like saying that all Democrats hold ridiculous claim C!

Well, obviously there's no analogy whatsoever between the ridiculous claim C and the claim that Republicans deny the existence of commerce -- after all, the latter os obviously true!

"But it is quite exasperating when one's disputants...."

Indeed, it is. However, breaking one's arm patting one's self on the back for one's own superiority, and displaying contempt for one's interlocuters doesn't go well with pleading for responses and then engaging in tantrums at receiving few answers.

It's remotely possible there's a connection between the two.

I have no dog in the substance of this food fight. I do have an observation or two about social graces, and effective ways of communicating with people, although I've now made my primary point.

Conversation is a social interaction; something to perhaps keep in mind; if nothing else, at least in choosing an effective stylistic tack designed to gain desired response.

Breaking out into all caps traditionally is considered in online situations to be "shouting." Consider the reaction were you conversing in someone else's living room, and you were saying the words you wrote above aloud, and you broke into shouting the all caps part.

What reaction do you think you'd see on people's faces, in their body language, and in the choices they would then make?

Consider the possibility that, in fact, the reaction of people to reading the same in print might be little different.

Niels: before I go off and spend hours scouring the Congressional Record, I want to get the rules of this game straight. You seem to be asserting the following rule of inference:

If no Congressperson of a given party can be found saying that P, it follows that members of that party believe that not-P.

If you accept this rule, then I challenge you to find Republicans who assert any of the following claims:

Republicans are corporeal beings.
No member of Congress is (literally) an insect.
The Capitol is not made of styrofoam.
It is false that Britney Spears is an android created by a malevolent God to torment us.
Pencils are not intelligent, sentient beings who disguise their feelings because they are the strong, silent type.

If you are willing to either find Republicans who deny any of these claims, or admit that all Republicans believe them to be false, then I will go off on your little errand.

I'm sorry, but if you have no view of what the commerce clause means this discussion is a pointless threadjack. The reason that Lopez and Morrison freaked some liberals out is that they didn't know where the courts would draw the line, and they feared that we'd be back on our merry way to the days of Hammer v. Dagenhart where it's not interstate commerce as long as you're not standing on the state line. I've had classmates in law school tell me that the 1964 civil rights act, the minimum wage law, and indeed most labor laws as well as most environmental laws, were unconsitutional. I have a huge problem with that. With Lopez in itself, not much problem.

It's similar to Brennan's position in the obscenity cases: he couldn't see where to draw the line, so he gave up trying in the end.

In cases where it's hard to draw the line, where you end up striking down no laws at all or a whole lot of laws, I think the Court should read enumerated powers broadly, and should also read enumerated rights broadly. (This is why Sebastian's statement that "The interstate commerce clause shouldn't be a nullity" puzzles me. The commerce clause is a grant of federal power, not a limitation on it--it's my federalist society classmates who want to make it a nullity. Liberals want to make it a blank check perhaps but that's not the same thing.)

My objection to the Bush administration's commander in chief arguments is NOT that he reads that power broadly. It's that he doesn't read it like an enumerated power at all; he reads it like it's an inalienable right. He doesn't accept that any other part of the Constitution limits it. He thinks it entitles him to simply ignore the "take care that the laws be faithfully executed" clause, most of Article I, section 8 (Congress' enumerated powers), the habeas corpus suspension clause, the treaty clause, the supremacy clause, the due process clause, and on and on.

And, the breadth commerce clause is really NOT a separation of powers issue. It's a federalism issue. I care more about separation of powers than federalism, simple as that. You can point to plenty of successful democracies where the central government has the general police power and the role of the states and local governments are much more limited. I can't think of any successful democracies where there are no limits on executive power.

I don't expect any of this to penetrate this hugely successful threadjack any more than any other argument of course. sigh.

It is a particularly silly misreading to claim that I said that the Commerce Clause is "the root of all liberal evil."

No, you just said
When the subject is congressional power, they are offended to no end that the Supreme Court might EVER say that ANYTHING is beyond Congress's constitutional authority. Commerce clause, schommerce clause. As far as Congress is concerned, the Constitution is a complete blank check.

and

You're getting confused over the fact that while liberals promote an omnipotent Congress (for Commerce Clause purposes)

and

1) When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power;

I have no earthly idea where I could have gotten such a silly notion....

"states", above, should be "provincial governments".

LJ: Those are factual statements intended to describe what congressional liberals believe, for all practical purposes. I never intended to insinuate that their belief is "evil." That is a misreading.

Hilzoy: You're being facetious. Your propositions are self-evidently silly, and there would be no reason for anyone to affirm or deny them. But it is patently obvious that: 1) congressional Democrats highly resent any judicial interference with Commerce Clause legislation (or Spending Clause legislation, for that matter); and 2) they take every opportunity to demonize Alito or any other judicial nominee who has ever suggested that the Commerce Clause has any limits.

So if you deny that congressional liberals, in fact, do those things that I just mentioned, what is your basis for saying so? Just your intuition? Or the mere fact that you, personally, believe there are limits on the Commerce Clause? Try to come up with something better to go on here.

"It is false that Britney Spears is an android created by a malevolent God to torment us."

I have a miraculous proof that, on the contrary, it is true, but, alas, this comment box is too small to contain it.

Katherine:

I'm sorry, but if you have no view of what the commerce clause means this discussion is a pointless threadjack.

No it's not. I'm not allowed to point out that someone else takes two contradictory views unless I stake out a personal opinion on one or both of the views? Why is that again?


The reason that Lopez and Morrison freaked some liberals out is that they didn't know where the courts would draw the line, and they feared that we'd be back on our merry way to the days of Hammer v. Dagenhart where it's not interstate commerce as long as you're not standing on the state line. I've had classmates in law school tell me that the 1964 civil rights act, the minimum wage law, and indeed most labor laws as well as most environmental laws, were unconsitutional. I have a huge problem with that.


You're proving my point. Not that this is relevant, but I'm happy to have Congress enforce civil rights laws, environmental laws, etc. But that's the point: Liberals (as well as some moderates like me) want Congress to do lots of things that the Constitution itself doesn't literally authorize, and they do not want the Court to interfere. Yes, yes, yes. Now the question is: Can this view -- that Congress can and should do lots and lots of things that are beyond its enumerated powers -- be squared with the view that 1) the President is limited to Article II powers, and/or 2) the Supreme Court should carefully monitor presidential power (declining even to deploy the doctrine of justiciability, or the political question doctrine).

It's similar to Brennan's position in the obscenity cases: he couldn't see where to draw the line, so he gave up trying in the end.

Yes, it's quite striking to see the contrast between the Roth opinion and later Brennan obscenity case.

This is why Sebastian's statement that "The interstate commerce clause shouldn't be a nullity" puzzles me. The commerce clause is a grant of federal power, not a limitation on it--it's my federalist society classmates who want to make it a nullity. Liberals want to make it a blank check perhaps but that's not the same thing.)

A blank check! Yes! That's what I've been saying all along. Hilzoy: To the battlestations here; you're going to have to write another imaginary dialogue in an attempt to refute Katherine.

But Katherine, it's surely wrong to say, "The commerce clause is a grant of federal power, not a limitation on it." Well, yes, it is stated as a grant of power. But that grant of power is limited, not unlimited. And the federal government was originally supposed to be one of limited, enumerated powers (hence the 10th Amendment). That's the objection made by people who care about the Commerce Clause's text and/or history.

Moreover, any grant of power could be restated as a limitation on power. If the Constitution says, "Congress can grant patents for a limited time," it could as easily say, "Congress cannot grant perpetual patents." If the Constitution says, "Congress can regulate commercial activity that takes place between states," then given enumerated powers, it might as well say, "Congress cannot regulate things that are non-commercial and intrastate."


Anyway, this is all beside the point. The Commerce Clause is no longer much of a limit on congressional power, because (as you point out) it's too difficult for courts to draw a line here. The question is why you (or other Democrats) believe that courts are going to be any better at drawing a line when it comes to how the President conducts foreign policy, etc.

Pencils are not intelligent, sentient beings who disguise their feelings because they are the strong, silent type.

I just put that in there because I wanted to read it again, an I think I'm beginning to agree.

Hilzoy: You're being facetious.

For cripes sake, Niels, can you lighten up just a little bit? As a "conservative" commenter, I appreciate the other guys jumping into the debate, especially when they have some expertise, but this blog does not strictly follow the "Keep a tight a$$hole, all the time" rule.

Sorry if that last sentence violated posting rules.

And by the way Niels, I generally agree with you. Democrats, if they had their way would come up with plenty of laws like the 55 mph national speed limit, which may make sense in urban areas, but conflicts with what is customary and practical in the middle of Iowa or South Dakota. Most people would agree for instance, that Christmas decorations, outdoor lights and such, should be removed by Feb 1st, for instance, and I will add that I am in compliance with this, but I don't think it should be a federal law because of the commerce Claus.

Earlier, Niels wrote: There's no contradiction in observing the palpably obvious fact that: 1) When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power; 2) When it comes to Due Process, liberals are happy (usually) to have judges make up new constitutional rights (e.g., abortion, gay marriage) and impose those rights on an unwilling citizenry.

As to clause 1, that is mostly a true statement. Of course, it also applies to social conservatives, big business conservatives and, in fact, most everybody except con. law students and professors, libertarians and whoever is getting his ox gored by the particular federal law. Even the purported true conservatives / traditionalists on the Supreme Court seem incapable of articulating a bright line on what is within the scope of the commerce power. So, those baaaad liberals being tarred with the brush of disrespecting limits of federal power actually include most everyone.

As to clause 2, the very purpose of the Bill of Rights is to protect individual rights against majoritarian oppression. So, by definition, these cases will be imposed on an unwilling public.

Another comment for Hilzoy:

I'm not asserting the proposition:

If no Congressperson of a given party can be found saying that P, it follows that members of that party believe that not-P.

Rather, the proposition would be something more like this:

If no Congressperson of a given party can be found saying that P, and news articles are overflowing with examples where they say ~P, it is fair to infer that members of that party generally believe ~P. The burden of proof is therefore on anyone who tries to insist that members of that party believe something other than ~P.

Niels, again, until you can give some semblance of a position on what the Commerce Clause does and doesn't allow, or at least what you think it does mean and what you're unsure about, it's completely impossible to have a useful discussion.

You plain don't seem to get the grant of power/limitation on power thing I'm talking about & I'm not sure how to explain it in a way you will get. Again, even the liberals who have the most expansive view of the commerce clause do NOT think it overrides every other clause in the Constitution, unlike the Commander-in-Chief clause.

Mr. Jackson: It looked like an accusation of bad faith to me. Sorry if I misunderstood you.

I think there's a real difference between saying that the statutes in Lopez, Morrison, Carhart, and Rybar are within the Commerce Clause -- and I think they are -- and saying there's no limit. I find Raich to be all the way out there at the edge. Can you postulate a statute I'd think is too far? I bet you could. Can you postulate a statute Justice Souter would think is too far out there? I'm certain you could. The fact that he, and most others, has gone no further than endorsing the decisions as to several specific statutes does not mean that there is no boundary.

I'm not aware, by the way, of some kind of liberal canon that such challenges are non-justiciable. The clause is broad, but the Court is fully empowered to decide whether any particular statute is beyond Congress' power to enact.

This stands in some contrast to the government's position on Article II powers.

As Katherine notes, it's not really correct to simply compare reactions to assertions of Article I power and to assertions of Article II power. Not least because Article I confers power over substantial matters (including the power to legislate as necessary not only for Congress' enumerated powers, but also regarding "all other powers vested by this Constitution in the Government of the United States . . .") while the powers conferred in Article II are generally more procedural in nature. The pardon power is one of the few truly unrestricted powers conferred on the President in the Constitution. I don't see the foreign policy power in Article II that Presidents commonly claim (and yes, I think Curtis Wright wrongly decided), or the unlimited war powers that this President is claiming.

I'm not one who has thought your generalizations, with limits and caveats as suggested, are untrue. Disputes about Article I powers are nearly always about whether the power resides in the state or US governments: I think it's fair to say, generally, that "liberals" favor a federal state with broad powers to address national issues, and believe that the Constitution creates one. Disputes about Article II are nearly always about whether the power resides in the people (either individually or through their representatives) or in the President. Fair again to say that liberals don't generally favor an unchecked executive, and that they don't think the Constitution has created one. Disputes about Amd XIV are nearly always about whether power resides in the people or in the State governments. It's fair to say that in a contest between an individual and a state that wishes to impose on the individual's rights, liberals generally side with the individual -- unless the interest of the state is truly compelling, and the intrusion truly necessary to vindicate that interest. And that the Amd XIV embodies this preference (having been enacted because states were manifestly incapable of respecting the rights of the individual). Again, I am unaware of any strain of liberal thought that suggests that Amd XIV questions are or ought to be unreviewable.

I don't regard any of the foregoing paragraph as particularly controversial, and I don't think you do either, Mr. Jackson.

Sebastian: Thanks for answering. What about race discrimination in hotels and restaurants?

Hil: And you?

DaveC: Most people would agree for instance, that Christmas decorations, outdoor lights and such, should be removed by Feb 1st, for instance, and I will add that I am in compliance with this, but I don't think it should be a federal law because of the commerce Claus.

*splutters coffee over keyboard*

Also, I wasn't making an affirmative statement that "liberals want to make the commerce clause a blank check." I'm saying it's a position you could make a defensible argument for. You, however, are not doing that. You are saying, over and over again, that "everyone knows it".

Most people would agree for instance, that Christmas decorations, outdoor lights and such, should be removed by Feb 1st, for instance, and I will add that I am in compliance with this, but I don't think it should be a federal law because of the commerce Claus.

DaveC, you might well have found the limit to the CC! Of course, I'd want to see the congressional findings before I completely buy into the notion that your statute violates the CC.

;- )

Charley, I have heard one guy who should know better say it's non-justiciable but I think that's a very silly argument, and like I said, it's one guy. It is not a common liberal position.

Agreed on Curtiss-Wright.

I always wondered why so many people who accept implied nationality security powers and "powers inherent in sovereignty" because the "constitution is not a suicide pact" and no one would have ever wanted to deny the government that power....

think it's completely absurd and laughable that there are implied and inherent rights because "the constitution is not a suicide pact" and no one would have ever wanted to give the government that power.

I don't think it's absurd for Niels to say that liberals want a broad commerce power. I think he's overstating the claim, providing no evidence for it, and am still completely perplexed as to why this is evidence that we shouldn't care about claims of absolute executive power. And it is simply false to say that liberals want an absolute commerce power, because, again, they are not arguing that the commerce power makes Dennis Hastert the commander in chief of the armed forces or gives Harry Reid or Bill Frist the veto power, or strip the federal courts of power to judge the legality of Congress' actions, or pass ex post facto laws or bills of attainder, or suspend the writ of habeas corpus except in time of rebellion or invasion, or the 1st amendment, or the 4th amendment, or the 5th amendment, or the 6th amendment, or the 7th amendment, or the 8th amendment, etc. etc. ad infinitum. And no one's saying COngress can pass laws in secret, either. At most, liberals argue that the commerce clause has become a general grantlike the states' "police power". But the states' police power is very far from absolute. The power that Bush is claiming as commander in chief, on the other hand, is very very close to absolute.

"Sebastian: I agree with you on all three as well, though in the case of marijuana growing I almost immediately think: well, what about that case involving wheat grown for personal consumption, which seemed to be exactly like the pot case except for the plant species involved? I think that was wrongly decided, based on my nearly nonexistent understanding of the relevant precedents to it, but what role should I give it as a precedent?"

It is indeed very similar to Wickard and its related cases, though distinguishable in that Wickard was growing feed for his animals which the Court said made it commerce. (I don't buy the argument that growing feed for your animals is necessarily interstate commerce either but it puts it still one step past growing a plant for your personal consumption.) I think there is also an even broader case than Wickard from that time period, but I can't remember its name right now.

I'll return to the precedent question after I respond to Katherine.

In cases where it's hard to draw the line, where you end up striking down no laws at all or a whole lot of laws, I think the Court should read enumerated powers broadly, and should also read enumerated rights broadly. (This is why Sebastian's statement that "The interstate commerce clause shouldn't be a nullity" puzzles me. The commerce clause is a grant of federal power, not a limitation on it--it's my federalist society classmates who want to make it a nullity. Liberals want to make it a blank check perhaps but that's not the same thing.)

I meant making the words of the clause a nullity, but if you want to call it a blank check that is fine.

The point is that the words: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" do not mean simply "To regulate commerce". When I say "make a nullity" I mean that liberal jurisprudence wants to completely ignore the words "with foreign Nations, and among the several States, and with the Indian Tribes". Asking the Court to take that seriously is most certainly not trying to make the clause a nullity. It is trying to bother with what is actually found in the Constitution. What really irritates me about modern liberal jurisprudence is that it happy to reach to penumbras and emmanations of meaning for clauses it likes, but it also wants to ignore clearer words. Arguably you can use prenumbras to reach conclusions in certain cases (I'm personally skeptical about it but in theory there could be something there) but if you are going to do so you can't get away with ignoring clearer parts of the text. Just because you might have to reach complicated questions with difficulty to understand penumbras doesn't give you license to do what you want on less complicated questions that are clearly dealt with.

The commerce clause is indeed a grant of federal power. It is not however a grant of federal power over all commerce. Treating it is if it were is not taking the Constitution seriously. And frankly current liberal jurisprudence as I understand does not even limit it to all "commerce" because the definition of "commerce" has been expanded to include literally anything. (And for those who complain about improper use of 'literally', I'm not using it to mean "metaphorically"). [BTW did I get the use/mention convention right in that sentence? I've gotten into that problem hilzoy talks about where I know my old instinct was wrong but I haven't replaced it with proper understanding of the rule, so I get into the "is this my old instinct I'm supposed to resist or the new instinct I'm supposed to embrace" problem.]

As for respecting precedent, if we want the ennumerated powers to mean something rather than nothing, we can't keep Wickard around. And we really can't keep the idea that all things are commerce around either. Since I like federalism as a concept, and since it is a huge part of how the Constitution is set up, I don't see how Wickard can stand. It was very clearly wrong. It very clearly expanded Congressional power over states vastly beyond what was intended.

Also, I wasn't making an affirmative statement that "liberals want to make the commerce clause a blank check." I'm saying it's a position you could make a defensible argument for. You, however, are not doing that. You are saying, over and over again, that "everyone knows it".

On this I'm rather inclined to side with Niels. I'm not sure if "everyone knows it", but you of all people certainly you know it. Super-carefully drawn I suppose Niels should have said "Modern liberal understandings of jurisprudence offer no limit on Congressional power based on the Commerce Clause and anyone who is aware of Commerce Clause discussions should already know that." Asking anyone to establish the fact that liberal jurisprudence reads away all of the limitations in the clause is really a waste of time. Either you know that is true or you don't. It is so basic to the conversation that spending time establishing it is silly. It is so well understood that if someone thought that liberal jurisprudence limited Congressional power via the Commerce Clause they would have to raise evidence to prove it or no knowledgeable person in the debate would take them seriously. Niels overstated it by suggesting that liberals couldn't even cognize a limit, but if you are reading him as saying that liberals jurists and legislators act as if the clause was a blank check, you really shouldn't waste time asking him to prove that. They do. You know they do. We all know they do.

Niels, again, until you can give some semblance of a position on what the Commerce Clause does and doesn't allow, or at least what you think it does mean and what you're unsure about, it's completely impossible to have a useful discussion.

Well, maybe we can't have a "useful discussion" about what the Commerce Clause means, in and of itself, but we can certainly have a discussion about whether it is appropriate to 1) interpret the Commerce Clause with much latitude than anything in Article II, and/or 2) believe that the Supreme Court should take a more aggressive role in limiting the President than in limiting Congress.

You plain don't seem to get the grant of power/limitation on power thing I'm talking about & I'm not sure how to explain it in a way you will get.

I understand your point, which is wrong.
If a provision in the Constitution grants only a limited power to Congress, and that grant gets treated as if it were effectively unlimited, then it makes no sense to say, "Well, the clause is not a limit, it's a grant." That's just being evasive. Of course it's phrased as a "grant," but that doesn't mean it has no limits inherent in that grant of power.

Besides, if: A) The Commerce Clause grants Congress the power to regulate interstate commerce and not intrastate non-commerce, and B) liberals generally want Congress to regulate a whole bunch of additional things that include intrastate non-commerce (b/c of aggregate effects, etc.), and C) your friends say that Congress should stick to interstate commerce (because that's all that was authorized in the first place), then it isn't your friends who are trying to make the Commerce Clause a nullity.

SH, I think there's some overbreadth in your final blank check sequence. Introduce a bill requiring Christmas decorations be brought down, and you might find it.

Rather than take another whack at that horse, I just wanted to think for a minute about what happens if partial-birth abortion comes before the Court and gets 4 votes to strike down on due process grounds, 4 votes to strike down on commerce clause grounds, and 1 vote concurring in the judgment.

Personally, I view INS v. Chadha as the decision that most effectively increased executive power at the expense of Congress in recent years, and think that remedying the problem created (executive agencies becoming effectively unfettered in issuing regulations as far as Congressional views go, which was not the original intent when those agencies were first set up) would be a good idea (in spite of the Court's opinion in Chadha, it should be a simple matter to create a procedure by which Congress would have to actively approve all new regulations from the executive agencies, and to withhold that approval if they were so inclined to create a functional "legislative veto" that would not constitute a form violation). Executive orders could use a bit of gelding, too--I was rather miffed when Bubba went on that land grab in red states near the end of his second term, and I wouldn't mind taking that temptation away from Republican presidents as well. The specifics of that would require some work to avoid overdoing the cutback, of course.

Charley -- I actually agree with most of what you wrote.

That said, is there anything that Souter would find beyond the Commerce Clause's grant of authority? I don't think so. His dissent in Lopez begins by saying that the Court should defer to "what is often a merely implicit congressional judgment that its regulation addresses a subject substantially affecting interstate commerce 'if there is any rational basis for such a finding.'"

And later in the opinion, he approvingly cites an Equal Protection case that said, "those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it; . . . it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature."

I don't think that any law would ever be struck down under judicial review that is as lax as Justice Souter would have it. All that would have to happen is that DOJ (defending the law) would say, "Congress could hypothetically have thought that this activity might have an effect somehow on interstate commerce, and the plaintiffs haven't disproved every conceivable thing that Congress might have thought." Then, the law would survive.

Note: This goes to the common knowledge that I've been referring to above, i.e., that judicial liberals set a standard that is so loose that it is no standard at all. Maybe I shouldn't assume that people are familiar with Justice Souter's writings, or any judicial decisions, for that matter.

Also, Charley, no one says that the Fourteenth Amendment is not justiciable as a general matter, but I don't believe (I could be wrong) that Alito said that Article II is itself non-justiciable either. What he said was that some questions in particular cases might be non-justiciable.

And that is equally true of the Fourteenth Amendment. You can't just file an Equal Protection claim willy-nilly. You have to have standing (i.e., prove that you are injured in a concrete fashion, that the court will be able to redress the injury, etc.). The claim has to be ripe. The claim cannot be moot. And so forth -- those are doctrines that apply in all cases, given that federal courts are authorized only to hear live cases or controversies under Article III.

Interestingly enough, Alito's statements appear to be consistent with what the Supreme Court decided in Raines v. Byrd, where members of Congress were not allowed to sue to challenge the line-item veto. As Souter and Ginsburg put it in their concurrence:

Because it is fairly debatable whether appellees' injury is sufficiently personal and concrete to give them standing, it behooves us to resolve the question under more general separation of powers principles underlying our standing requirements. See Allen v. Wright, 468 U.S. 737, 752 (1984); United States v. Richardson, 418 U.S. 166, 188 -197 (1974) (Powell, J., concurring). While "our constitutional structure [does not] require . . . that the Judicial Branch shrink from a confrontation with the other two coequal branches," Valley Forge Christian College, supra, at 474, we have cautioned that respect for the separation of powers requires the Judicial Branch to exercise restraint in deciding constitutional issues by resolving those implicating the powers of the three branches of Government as a "last resort," see ibid. The counsel of restraint in this case begins with the fact that a dispute involving only officials, and the official interests of those, who serve in the branches of the National Government lies far from the model of the traditional common law cause of action at the conceptual core of the case or controversy requirement, see Joint Anti-Fascist Refugee Comm., supra, at 150, 152 (Frankfurter, J., concurring). Although the contest here is not formally between the political branches (since Congress passed the bill augmenting Presidential power and the President signed it), it is in substance an interbranch controversy about calibrating the legislative and executive powers, as well as an intrabranch dispute between segments of Congress itself. Intervention in such a controversy would risk damaging the public confidence that is vital to the functioning of the Judicial Branch, cf. Valley Forge Christian College, supra, at 474 (quoting Richardson, supra, at 188 (Powell, J., concurring)), by embroiling the federal courts in a power contest nearly at the height of its political tension.

Niels: I'm just objecting to your overstatement. Here's why:

The interstate commerce clause grants Congress the right to regulate interstate commerce. The courts have held that when something is sufficiently closely related to interstate commerce, then Congress can regulate it as well.

Your claim that liberals recognize no limits on the commerce clause might be interpreted to mean either (a) that given the court's actual rulings, nothing whatsoever falls outside the commerce clause, or (b) that the commerce clause ought to be interpreted in such a way that it grants the Congress the power to regulate anything.

These claims will be true only if either the Supreme Court (a) has held or (b) ought to hold that everything is interstate commerce, or if it either (a) has held or (b) ought to hold that everything is sufficiently closely related to interstate commerce that Congress can regulate it.

Either claim is simply ludicrous. Consider, for example, my habit of splashing water on my face when I wake up. (I get my water from a well, for what it's worth.) Is that "interstate commerce"? Not unless you're Humpty Dumpty, and the words get to mean whatever you want. Is it sufficiently closely related to interstate commerce that Congress could regulate it under the commerce clause? I don't see how even the appalling wheat decision gets you anywhere close to that.

Now: for someone to accept the view you ascribe to Democrats, they would have to believe that splashing my face with water is, in fact, regulable as interstate commerce, or as being in some way closely tied to it. And if someone comes up with an ingenious story about that example, pick another. (Sometimes, when I'm feeling very bored and I'm in some situation in which I can't do anything about it -- e.g., waiting for a bus -- I count in Arabic in my head. Why? No reason. Is that regulable? According to the view you're attributing to Democrats, it is. That's absurd.)

Why this matters, apart from precision in language being a generally good thing, is that if you stopped saying that Democrats held this ludicrous view, you might have to try attributing to us a view that took the 'sufficiently closely connected' relation to be broader than you think, though not so broad as to encompass literally anything. Then we could have an argument, and you could argue against a view that wasn't a straw man of your own devising. Until then, however, I really think you are in "strong, silent pencil" territory.

Mr. Jackson, I think you're overstating Justice Souter's position. He's willing to defer to congressional findings of a relationship to interstate commerce, if supported by a rational basis. That's common enough, and no more a grant (as opposed to a limitation) than the CC itself. And that he'll affirm a statute is it is a legitimate exercise of congressional power -- even if the appropriate provisions were not invoked when the law was passed -- doesn't strike me as radical either. The alternative is to strike down the statute, saying 'gee, Congress, you can pass this same law again with just a few magic words that have nothing to do with the substance of the law.' I'd be surprised if this is controversial at all: of course the default position of a court ought to be upholding a statute if any legitimate basis for doing so should be found.

"These claims will be true only if either the Supreme Court (a) has held or (b) ought to hold that everything is interstate commerce, or if it either (a) has held or (b) ought to hold that everything is sufficiently closely related to interstate commerce that Congress can regulate it.

Either claim is simply ludicrous. Consider, for example, my habit of splashing water on my face when I wake up. (I get my water from a well, for what it's worth.) Is that "interstate commerce"? Not unless you're Humpty Dumpty, and the words get to mean whatever you want. Is it sufficiently closely related to interstate commerce that Congress could regulate it under the commerce clause?"

How did you get the water? If through the public pipes that take some draw (and pay for it) on a river that goes through more than one state--interstate commerce. Heck, it is more related to interstate commerce than growing something for your personal use. Combine that with the hotel cases (which by the way I don't think you should, the race related cases are really more of an emergency kind of thing and should almost never be expanded beyond race in my opinion because nothing else has the pernicious history that race/slavery had in the US) and I think you have an excellent argument that pre-Lopez splashing water on your face in the morning could be regulated under the interstate commerce clause. (And by excellent I mean "not contradicting the judicial rulings and policies between in the years between Wickard and Lopez). And Lopez, of course, is not exactly well received in liberal jurisprudence.

I just re-read Chadha, inspired by MSE. Justice Powell's opinion, in particular, is worth a read, and I liked Justice White's as well.

Sebastian: that's why I mentioned my well. It comes out of the ground. And, just in case anyone wonders, I live nowhere near a state line, so the water table does not cross state boundaries.

I just re-read Chadha, inspired by MSE. Justice Powell's opinion, in particular, is worth a read, and I liked Justice White's as well.

[nods]

White--as Scalia did in Morrison v. Olson--plays the role of Cassandra and has, IMO, been proven right in retrospect. Powell correctly suggests that the Court could have decided the case on far narrower grounds and should have done so.

the race related cases are really more of an emergency kind of thing

Well now wait a minute. Is there an emergency exception to the commerce clause? A race exception? Or are you heading out into Justice Douglas* territory?

*In his concurring opinion in Heart of Atlanta Hotel, Justice Douglas wrote

the result reached by the Court is for me much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual not with the impact on commerce of local activities or vice versa. Hence I would prefer to rest on the assertion of legislative power contained in @ 5 of the Fourteenth Amendment which states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article" -- a power which the Court concedes was exercised at least in part in this Act.

A decision based on the Fourteenth Amendment would have a more settling effect, making unnecessary litigation over whether a particular restaurant or inn is within the commerce definitions of the Act or whether a particular customer is an interstate traveler. Under my construction, the Act would apply to all customers in all the enumerated places of public accommodation. And that construction would put an end to all obstructionist strategies and finally close one door on a bitter chapter in American history.

I wouldn't have pegged you as a fan.

OT: Just saw http://www.timesonline.co.uk/article/0,,2089-2003828,00.html>this about Gitmo hunger strikers. Even if one accepts the basic premises of the government's detention policy, surely deaths of prisoners by hunger strike isn't really an optimal result for US standing.

Hil, what if you wanted to dump a toxic substance in the instrastate water table?

Sebastian, do you think federal child labor laws are unconstitutional?

Katherine: I would have thought that would be for the state or local governments, unless there was some wheat-like "really, we can't be bothered to see exactly which water tables flow across the state, now can we?" exception. But this would (I would think) not mean that any use of my well water is regulable; just that any use that could possibly be relevantly related to commerce could be.

(Just as the fact that I can use my car to conduct interstate commerce doesn't per se make all my driving subject to Congress.)

" I would have thought that would be for the state or local governments"

Oh, that works real great in practice. So you think the Clean Water Act and CERCLA are probably unconstitutional?

My basic attitude about hunger strikes is that the willingness of some fool to starve himself to death as a means of forcing someone to do something tells us precisely zero about the validity of their cause--and that human beings, including incarcerated ones, should be free to end their existences if the mood strikes them--though if one is doing it in their right mind it is a rather selfish act given the effect it is likely to have on their loved ones.

I don't want to jump into the Constitutional arguments here, but I do think

"There are good reasons why one should take an expansive view of congressional authority but not so expansive a view of presidential authority,"

and there are good reasons why the Court ought to be very suspicious of Presidential overreaching.

Briefly, Congress acts slowly and in public view. It requires agreement among substantial number of members to do anything (even if that number is much less than a majority of either house).

The President may act quickly, in secret, and without concurrence from anyone. Thus Presidential power is much more prone to abuse than Congressional power. In addition, Presidential abuses are much more likely to be actually harmful, rather than merely unconstitutional. (I am not suggesting we ignore constitutionality, just that a law that goes beyond the limits of the Commerce Clause is less likely to be harmful than an action taken in secret by the President. Can anyone argue that the statutes invalidated in Lopez and Morrison were disastrously unwise?)

For these reasons I think the views Niels Jackson wants to consider inconsistent are not inconsistent at all.

Much of this is influenced by the current abuses of power by the Bush Administration. So my arguments may be too "results-oriented," and insufficiently "grounded in principle" for some. That is a reflection of how I think about the world. Striving for Euclidean rigor in political matters does not make sense to me.

"My basic attitude about hunger strikes is that the willingness of some fool to starve himself to death as a means of forcing someone to do something tells us precisely zero about the validity of their cause...."

That Gandhi sure was a freaking idiot.

"Congress acts [...] in public view.

Yeah, not so much these days.

"It requires agreement among substantial number of members to do anything...."

Again, only if "substantial numbers" mean "the majority of the conference committee," so about maybe 8 members.

"The President may act quickly, in secret, and without concurrence from anyone."

You mean, like the Republican majority Congress acts.

Everything you say, Bernard, was perfectly true. Ten years ago. Not in this century.

I understood Charley's point to be that, no matter what you think of the justice of the cause, it is a terrible result for the Muslim world's opinion of the U.S.

It is also a sign of desperation, of course: either you would prefer death to life in these conditions; or you think the only way you see to change the situation is to threaten to starve yourself to death--and to act on that threat if necessary. I assume that's not a decision people make lightly. It doesn't mean their cause is just or they're making the right decision, but it's a sign of desperation and sincerity, that causes people to ask: why has this person decided to starve himself to death?

I guess there are probably countries where you wouldn't even bother trying, because you knew people would not be very surprised about prisoners who haven't been charged or convicted starving themselves to death. We may not be the kind of country where this can't happen, but at least we're still the kind of country that finds it embarrassing.

Gary, as corrupt as the conference committees are, it's not the same level of secrecy. It is still possible to read the bill. Often not with enough time to stop it from passing, but you can read the bills & the laws they pass. Whereas as some of the stuff Bush has done was intended to be kept from public view indefinitely.

MSE, I'm not in complete disagreement with you. As to the question whether the US's foreign policy interests are best served by allowing prisoners to starve themselves, your remarks are non-responsive.

As you surely know, the point of a HS is not to demonstrate the validity of the cause, it is to get people to notice the cause -- and let the validity question be resolved on the merits.

"As you surely know, the point of a HS is not to demonstrate the validity of the cause, it is to get people to notice the cause -- and let the validity question be resolved on the merits."

This isn't obvious to me. Somewhere in Moorcock's _Gloriana_ a man leaves a note confessing to a crime and kills himself to prove his sincerity - at least it has that effect.

Thanks Bernard -- finally someone addressed the question I was interested in. And you've got a point: Publicness of the governmental action makes a difference.


Charley: "I think you're overstating Justice Souter's position. He's willing to defer to congressional findings of a relationship to interstate commerce, if supported by a rational basis."

But in the very passage I quoted, there don't have to be any congressional findings at all -- the mere fact that Congress passed the law is viewed as an "implicit" finding that commerce is involved.


Hilzoy: Your first proposition is correct, at least mostly: " given the court's actual rulings, nothing whatsoever falls outside the commerce clause."

That should be, "Given the Court's actual rulings, and excluding the Lopez and Morrison decisions that most liberals despise, nothing whatsoever in principle is certain to fall outside the Commerce Clause."

Water splashing on your face? Well, hold on: If you're using well water, you're not buying BOTTLED water for that purpose. And you're therefore affecting the interstate market for bottled water. That makes just as much sense as Wickard -- the farmer who grows wheat for his own use, which was regulable because his failure to purchase wheat supposedly would have a negative effect on the interstate market.

That's what I mean: Take the liberal Supreme Court decisions to their logical conclusion, and you can regulate absolutely anything.

K: I think that a lot of the water whose cleanliness is governed by the clean water act is, in fact, relevant to interstate commerce, and, as I said, I'm open to the idea that figuring out which is not is unduly cumbersome. (I'd have to think about it.)

Honestly, though, I think that there are issues that are obviously federal, but which the authors of the Constitution did not anticipate, and that the thing to do about them is either to pass an amendment, or to govern them by making federal money contingent on states' doing stuff about them. And the environment has always been, in my mind, the obvious example of something like this.

It ought to be federal, since there's no other way in which one state can protect its own environment from the acts of other states, or in which, if 49 states want to have a clean environment, but the 50th (which let's suppose is centrally located, not e.g. Hawai'i) has no environmental regulations at all, the residents of the 49 can get their desires acted on. But instead of being regulated directly, it has to be brought in under the interstate commerce clause.

I'd much rather not make the argument that e.g. polluting lakes in the very middle of a large state, whose effect on other states is due to its being a crucial nesting or flyover site for birds, is wrong because ensuring the survival of migratory birds is in some way a form of regulating interstate commerce. Thus, I'd be happier either using strings on federal money to protect them or amending the Constitution.

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