Thursday, November 09, 2006

Commerce Clause Overreach?

One thing that I find more than a little annoying about the present state of things is how the Commerce Clause has been stretched to accommodate just about any behavior under the sun (see, for instance, Ashcroft v. Raich). More recently this question has popped up on SCOTUSblog in connection with the two abortion cases argued yesterday. Reading through the post, I'm struck by the following quote
Second, as Justice Stevens himself has recently explained for the Court, Congress's Commerce authority extends at the very least to the regulation of even nonprofit entities if they "purchase goods and services in competitive markets, offer their facilities to a variety of patrons, and derive revenues from a variety of sources, some of which are local and some out of State." Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 585-586 (1997). That almost certainly describes all, or virtually all, clinics and other facilities at which the abortions in question would take place.
I may be missing some legal subtleties here, but I'm failing in my valiant effort to imagine a group which the phrase "purchase goods and services in competitive markets" doesn't cover. I find myself asking what activity isn't covered by the Commerce Clause? Google doesn't provide a good answer to this topic, just a bunch of people complaining that the Commerce Clause is being abused Its an established principle1 of Constitutional interpretation that each word has a meaning. Can we extend this notion and assert that each phrase has a meaning as well? What I'm getting at here is that The Framers wouldn't have specifically said "among the several States" if they had intended for Congress to be able to regulate all forms of economic activity (which seems to be where things stand now) . Doesn't the Commerce Clause's mere presence indicate that they understood there to be a limit to Congress' power to regulate economic activity? Put more succinctly, it seems that the continued expansion of activity which is regulated under the Commerce Clause runs afoul of this implicit limit.
1 Wish I could find a cite for this... asserting established principles is not something I do lightly.


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