Cato — Randy Barnett: Amend the Commerce Clause

In the New York Times and at Cato, Randy Barnett proposes to amend the commerce clause of the US constitution. His proposed draft (my emphasis):

“The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”

I have issues with your proposed exceptions, Randy.

1. Defense against internal insurrection is to be justified by the commerce clause?

Haven’t you just created a brand-new aneurism in the commerce clause containment vessel?

Why is article 1, section 8 insufficient: “The Congress shall have Power … To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” — ? And how does war (by definition with foreign entities) even become part of an interstate commerce discussion?

2. Interstate pollution is to be regulated under the commerce clause?

Think EPA, Randy. (You didn’t forbid Congress from delegating its legislative powers to the executive.) The bureaucracy defines what a harmful emission is, then goes ahead to write regulations. Surely public nuisance laws are a better approach than regulators, and you wouldn’t need fad-of-the-moment language in the constitution.

Another aneurism, Randy. Commerce and pollution are quite different things, and you create all kinds of opportunities for mischief by conflating them. What kind? Hard to tell from here, but we certainly know that politicians are creative with language!

At least as bad as the presumption of federal bureaucracy is the presumption of state absolutism, the assumption that states themselves have the authority and machinery to control anything their residents may do.

Back to the drawing board, Randy. Think about it.


About 86dave

World traveler, mostly first and second world Outdoors: hiker, cyclist, photographer Libertarian Author, Gigabit-capable Passive Optical Networks, Wiley, 2012
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