In my previous post, I wrote of how a broad commerce power is inconsistent with two significant structural features of the Constitution. The first structural feature is that one should not read one enumerated power so broadly as to render the enumeration of all of Congress’s powers pointless. If a broad commerce power places no limits on Congress’s power, then it is clearly mistaken. The second structure feature applies in less extreme cases. Even if Congress’s commerce power does have limits, it should not be read so broadly as to render many of the other enumerated powers surplusage. This structural feature…
One of the fixtures of modern constitutional law is an extremely broad commerce power (founded on both the Commerce Clause and the Necessary and Proper Clause). Prior to US v. Lopez in 1995, this commerce power seemed to be essentially unlimited. After Lopez, the commerce power is now only largely unlimited. While Lopez placed limits on the power, Gonzales v. Raich may have a put a stake in the heart of Lopez (but perhaps the Court will treat Raich with the same respect it gave to Lopez). The 2012 Obamacare case of NFIB v. Sebelius did seem to hold that Congress could not mandate commerce, but that power is unlikely to arise often (after all, Congress had never used it before).
The extremely broad commerce power seems obviously to be inconsistent with the original meaning. Why? Besides arguments based on the meaning of the terms of the relevant clauses, it is inconsistent with the structure of the Constitution – that is, with other constitutional clauses.
The most common criticism of the modern commerce power is that it is unlimited and therefore inconsistent with the enumeration of the federal powers. Why, after all, list all of the powers if one has conferred unlimited authority on the federal government. This is a strong argument, but it is limited – it can be answered so long as one admits that there are areas where the federal government lacks power. It is a testament to how extreme the nationalist vision of the modern commerce power is – as articulated, for example, by Justice Breyer – that it is unwilling to acknowledge that there is any area that the commerce power cannot reach. But a less extreme Justice could presumably answer the criticism by admitting areas where the commerce power does not extend.