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Commerce Clause

6 min read

Part of The Constitution and the courts.

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Every episode (3)

Who argued it

Ilan Wurman · Timothy Sandefur · Manny Klausner

Federalism · Libertarianism · Constitutional Law · Originalism · 14th Amendment · Property Rights · Administrative State · Enumerated Powers

Background

The Libertarian Critique of Commerce Clause Jurisprudence

The Commerce Clause grants Congress the power to regulate commerce among the several states. According to Timothy Sandefur, beginning in the late 1930s the clause “has been expanded to allow Congress essentially a blank check of power to do whatever it feels like.” Sandefur’s organization revised the clause’s language to provide that it “shall not authorize regulation of a non-commercial activity or any activity that is confined within a single state regardless of its effect outside the state,” while still allowing Congress to regulate pollution that crosses state lines. Timothy Sandefur on The Libertarian Constitution (2021)

Sandefur assigned blame for this expansion to Franklin Delano Roosevelt and the Supreme Court that “toadied up to him,” beginning primarily with National Labor Relations Board v. Jones & Laughlin Steel Corporation, which upheld the National Labor Relations Act on the theory that without the Act there would be a problem with the labor market that would disrupt the nation’s economy. Sandefur characterized that reasoning as “so ludicrously expansive” that it became an open door for Congress to regulate practically anything with any economic effect on the nation. Timothy Sandefur on The Libertarian Constitution (2021)

Bob Zadek objected to the passive framing that the Commerce Clause “was expanded,” arguing that the Supreme Court over time assigned a meaning to the clause that it never had. Sandefur agreed, saying the blame rests squarely on Roosevelt and the Court. Timothy Sandefur on The Libertarian Constitution (2021)

The Obamacare Challenge and Randy Barnett

Damon Root described the 2012 healthcare case as presenting the question of whether Congress had authority under the Commerce Clause to impose the individual mandate requiring Americans to buy health insurance. Randy Barnett, a law professor at Georgetown, was described as the architect of that legal challenge and had argued for a narrow reading of the Commerce Clause for a long time. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)

In 2005, Barnett argued a medical marijuana case at the Supreme Court and lost, with Scalia and Kennedy voting against him in favor of broad Commerce Clause power. Root noted that just seven years later, Barnett’s arguments became the default conservative position, with the entire conservative movement lining up against Obamacare. Scalia changed his views, while Roberts held to the older conservative view. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)

Zadek called the 2005 medical marijuana decision “a terrible decision” and “a painful decision.” Root said the libertarian legal movement had been waging a war of ideas within the conservative legal movement, and that the libertarian view was now much more dominant on the right than it was 30 years prior. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)

The Dormant Commerce Clause and Proposition 12

Richard Epstein explained that the Dormant Commerce Clause doctrine holds that if Congress has not legislated but a state statute imposes an impediment to the free movement of goods and services across state lines, the very fact that the Commerce Clause takes over the area means those statutes can be struck down. The doctrine was dormant until 1824, when Gibbons v. Ogden outlined it. Epstein noted the doctrine is in “somewhat of a disarray today” and that originalists like Thomas and Scalia are reluctant to extend it. Which Side Are You On? (2022)

Epstein said the Dormant Commerce Clause arguments are stronger in the pork case than in other contexts because California says it will not sell pigs slaughtered outside the state that do not meet California standards, which he called the “extraterritorial effect.” He raised the hypothetical of California refusing to allow goods made in a right-to-work state or by nonunion firms, arguing the Dormant Commerce Clause absolutely prohibits that. He noted unions and the state filed a brief that “just punted” when confronted with that hypothetical. Which Side Are You On? (2022)

Epstein said the case may be remanded to determine whether the price increase posited by the industry, close to 10%, is a true number. He also predicted imitation, with other liberal states borrowing California’s statute once constitutional issues are resolved. Which Side Are You On? (2022)

Congressional Power and Abortion Legislation

Evan Bernick noted that if Congress wanted to pass legislation protecting the right to an abortion, it would have to rely on its power under the Commerce Clause on the theory that abortion is economic activity. He said that as a federal constitutional matter, one could not go into federal court and claim a right to terminate a pregnancy. Evan Bernick on the Dobbs Draft (2022)

Zadek observed that federal law has criminalized activities previously within state province, including alcohol, drugs and guns, not because the federal government has power per se to enact criminal law but because it needs a “hook.” He said given Commerce Clause jurisprudence, Congress can find a hook to do so. Evan Bernick on the Dobbs Draft (2022)

Across episodes

The Commerce Clause is discussed in the 2014 episode with Damon Root, the 2021 episode with Timothy Sandefur, the 2022 episodes on Proposition 12 with Richard Epstein, the 2022 episode on the Dobbs draft with Evan Bernick, and the 2023 episode on California legislation with Epstein. The episodes show a consistent libertarian critique of broad Commerce Clause interpretation, with the 2014 episode focusing on the Obamacare challenge and the later episodes addressing the Dormant Commerce Clause and congressional power.

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