Josh's Weblog: The Commerce Clause

The Commerce Clause

Are the confirmation hearings of Judge John Roberts going to center on the Commerce Clause and not on abortion and gun control like most people expect? In an editorial in this morning's Wall Street Journal it is deftly pointed out that in Rancho Viejo v. Gale Norton the circuit court judge wrote the ruling:

The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating “Commerce… among the several States.” U.S. Const. art.

The WSJ editorial opines:

This implies a less expansive view of the Commerce Clause than the current Supreme Court majority, and suggests he would have joined the four dissenters in Raich, the Supreme Court's recent decision to let the federal government overrule state laws on regulating medical marijuana.

What's all the stink about? The Commerce Clause is more technically known as Article I, Section 8, Clause 3 of the US Constitution. Section 8 enumerates the powers of Congress, and Clause 3 reads thus:

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

This particular clause, like the emergency provisions in Washington law I've mentioned before, has been particularly abused in order to justify the weirdest largesses of the Federal government. The Raich case mentioned above ruled that a person growing marijuana for themselves in their back yard was somehow interstate commerce because marijuana could be sold across state lines.

If that strikes you as a little odd, you're not alone. I'm hoping that Roberts is a little more rational on the Commerce Clause and that particular rationality will lead to some better rulings on control control, abortion, emminent domain, environmental protection, telecommunications, and so on.

Josh Poulson

Posted Thursday, Jul 21 2005 08:30 AM