The Commerce Clause, as stated in Article 1. Sec. 8. Paragraph 3: To regulate Commerce with foreign Nations, and among the several states, and within the Indian Tribes;
“In none of the sixty-three appearances of the term ‘commerce’ in the Federalist papers is it ever used to unambiguously refer to anything beyond trade or exchange.” – Randy E. Barnett, Commerce clause expert and Georgetown University law professor.
In 1787 Regulate meant to smooth out or regularize. Regulate now means to bring under the control of law or constituted authority. The 1828 definition was To subject to rules or restrictions.
The Supreme Court has sometimes broadly interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly allowed by the enumerated powers nor expressly denied in the limitations on Congress.
In McCulloch v. Maryland (1819), the Supreme Court read the Necessary and Proper Clause to permit the federal government to take action that would "enable [it] to perform the high duties assigned to it [by the Constitution] in the manner most beneficial to the people", even if that action is not itself within the enumerated powers. Chief Justice Marshall clarified: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."
In Gibbons v. Ogden (1824), the Supreme court gave the federal government the power to regulate all interstate commerce. Chief Justice John Marshall ruled that the power to regulate interstate commerce also included the power to regulate interstate navigation: "... [A] power to regulate navigation is as expressly granted, as if that term had been added to the word 'commerce' ... [T]he power of Congress does not stop at the jurisdictional lines of the several states….“.
In United States v. Darby Lumber Co. (1941), the Court upheld the Fair Labor Standards Act which regulated the production of goods shipped across state lines. The Court stated that the Tenth Amendment "is but a truism" and was not considered to be an independent limitation on Congressional power.
In United States v. Wrightwood Dairy Co. (1942) the Court upheld federal price regulation of intrastate milk commerce.
In Wickard v. Filburn (1942) the Court upheld the Agricultural Adjustment Act of 1938, which sought to stabilize wide fluctuations in the market price for wheat.
It was not until United States v. Lopez (1995) decision, after nearly 60 years of leaving any restraint on the use of the Commerce Clause to political means only, that the Court again ruled that a regulation enacted under the Clause was unconstitutional.
There are currently hundreds of regulatory agencies created from the Commerce clause, thanks mostly to FDR.
Each regulation can have the power of law and they are created by unelected bureaucrats.
In 2012, new regulations were issued costing $236 billion, the EPA accounting for $172 billion alone.
For example, the EPA (created in 1970) is a result of the usurpation of the Commerce Clause. There are many concerns surrounding this agency, as there are with the many other agencies of the federal government.
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