The Constitution’s cancer clause

This commentary originally appeared in The Washington Examiner on March 25, 2016.

The most carcinogenic words in American government have become the Constitution's Commerce Clause granting Congress the limited power "[t]o regulate commerce … among the several states." The Supreme Court's interpretation of these seemingly benevolent words has allowed our government to grow its regulatory jurisdiction from a set of clearly enumerated powers to one of virtually unchecked authority — each regulation akin to spreading cancer cells eating away at our nation's liberty and freedom.

The Commerce Clause was designed to provide a benign and limited federal power — to regulate and ensure the free flow of goods across state lines, i.e.,interstate commerce. Misinterpretation permitted that power to grow malignant to the point that it now extensively interferes with the overall functioning of the entire body politic.

Today, activist judges broadly interpreting the Commerce Clause have upheld federal regulation over activities that only happen within a state's borders, i.e., intrastate, and not just of a commercial nature. The Commerce Clause grants Uncle Sam a say on practically everything, from whether we can grow our own wheat to the legalities of squashing a bug in our own backyard.

The Supreme Court's expansion of the Commerce Clause has continued to evolve over time. In NLRB v. Jones & Laughlin Steel Corp., the court held the National Labor Relations Act of 1935 constitutional under the Commerce Clause and thus applicable to a private business' right to contract for its labor. This endorsement of federal interference with a business' intrastate activity legitimized federal control over activities having a "close and substantial relation" to interstate commerce when the control is argued as essential to protect commerce from burdens or obstructions. Commerce Clause cancer had taken hold.

It grew in 1942 when the court aggregated economic activity to justify regulating smaller and strictly interstate operations, under the Commerce Clause. In Wickard v. Filburn, a private farmer growing his own wheat for personal consumption was held properly subject to federal regulation via aggregation. Rather than focus just on the farmer in the case, the court imagined that if enough farmers grew their own wheat for personal consumption, that activity would have an impact on wheat sold in interstate commerce.

Once the government was armed with the tumors of "substantial relationships" and "aggregation," there was little left to support any challenge to the federal overreach that followed. In fact, the Supreme Court denied every challenge seeking to limit Commerce Clause powers from 1937-95.

While there was a brief glimmer of remission with the decisions inUnited States v. Lopez (banning firearms on school campuses ruled unconstitutional under the Commerce Clause) and United States v. Morrison (Violence Against Women Act also ruled unconstitutional under the Commerce Clause), it wasn't enough to shrink the growth of the past decades. By 2005, it was clear that the Commerce Clause was metastatic.

In Gonzales v. Raich, the court struck a blow to patients suffering with untreatable pain, holding the state-permitted practice of growing doctor-prescribed cannabis on private property for one's own personal medicinal use was federally regulatable as within the scope of the Commerce Clause. While, of course, relying on its old standbys of a substantial relationship and aggregation, the court also added a rational basis test.

Specifically, Congress got a judicial green light to regulate any intrastate activity that has virtually no impact on interstate activity so long as there is a rational basis for believing the intrastate activity poses a threat to the national market. This is so egregiously broad that they may as well say, "States regulate their own commerce only if Congress doesn't want to."

Commerce Clause cancer is an epidemic, draining all passion, courage and aspiration from our modern-day entrepreneurs, dreamers and healers. The cure is a Supreme Court that is more concerned with staying true to the intentions of our Constitution's authors than federal power. The cure is a Supreme Court brave enough to admit that decades of Commerce Clause jurisprudence needs a significant amount of rectifying.

Ultimately, the cure is a Supreme Court wise enough to put the principles of freedom and liberty ahead of politics, which necessarily means a court willing to undergo the painful, but ultimately healing, procedure of Commerce Clause chemo. Preferably before the condition becomes terminal.

Tracie Groh, J.D., is a researcher with the Center for the American Future at the Texas Public Policy Foundation. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.