The Modern Commerce Power

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.

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The Path Not Taken

F-18 Fighter Jet

Books reviewed in this essay:

Restraint: A New Foundation for U.S. Grand Strategy, by Barry R. Posen. Cornell University Press 2014

America In Retreat: The New Isolationism and the Coming Global Disorder, by Bret Stephens. Sentinel 2014


This generation’s U.S. foreign policy, resulting as it has in lost wars and almost universal disrespect for Americans, does not have many defenders.

Politicians and pundits of the Establishment Left, who made socioeconomic reform the hallmark of their foreign policy in the 1950s and 1960s, stopped advocating it in the 1980s—or any other means of supporting their remaining pretenses of global leadership. Whether they call themselves “internationalists” or “realists,” they are about reducing America’s power, and cover impotence with terms such as “multilateralism” and “leading from behind.”

Neoconservatives continue to support America’s primacy, as well as traditional geopolitical commitments including victory in the “war on terror.” They led the Bush administration into picking up “nation-building” as the Left was dropping it, became its last defenders, and were dragged into sharing the American people’s disdain for it. Now, neoconservatives are at a loss about how to square such means as they are willing to use with the grandiose ends they still advocate.

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The Economic Crash that Cured Itself: A Conversation with James Grant


What if a profound economic downturn occurred and the federal government basically ignored it? Couldn't happen, right? In his latest book, The Forgotten Depression, James Grant details for us the depression of 1921 and how it was permitted to cure itself. We discuss in this podcast how the Wilson* and Harding administrations let prices and wages fall, balanced the budget, and raised interest rates through the Federal Reserve. The result was a painful and, more importantly, quick depression that righted itself by late 1921, setting the stage for the economic growth of the 1920s. The comparisons are easy and telling. The…

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College Payouts to Politicians

Hillary Clinton has received substantial criticism because of the large fees she has gotten to speak on college campuses. But the universities are also worthy of criticism. What possible justification is there for universities to pay hundreds of thousands of dollars to any politician for a speech?  Universities aim to advance knowledge; politicians aim to advance themselves. Universities should value truth. Politicians are known for spin.

There is nothing wrong with welcoming politicians to campus. Students must use what they learn at college to critique the world, and politics is a worthy subject for interrogation. But the question remains why pay politicians to do it, when other aspects of college life in need of funds, such as instruction, facilities, and financial aid, are closer to the core mission of the university.

Such payments reveal two troubling aspects of the modern university.

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The Death of Paralyzed Veterans

This past Monday the Supreme Court heard oral argument in (yet) another important AdLaw case, Perez v. Mortgage Bankers Association. At issue: the D.C. Circuit’s “Paralyzed Veterans doctrine,” a set of cases holding that under some circumstances, agencies seeking to change their interpretation of a regulation or law must go through notice-and-comment rulemaking even when the original interpretation was adopted informally.

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The Inevitability of Monarchy

In The Once and Future King: The Rise of Crown Government in America, I argued that the United States was drifting towards the one-man rule of an all-powerful President. It’s not something people, especially American conservatives, wanted to hear, but then I had a secret ally in Barack Obama. He’s the gift that would never stop giving—but for term limits.

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Libertarianism and Social Interaction

Via David Henderson, I came upon this essay by John Edward Terrell in the New York Times criticizing libertarians and Tea Party types for favoring individualism.  What a morass of confusion!

To begin with, Terrell conflates (1) the appropriateness of respecting individual rights, (2) the moral question, how we should act, and (3) the psychological question, how we are likely to act.  He seems to believe that libertarians believe that we should have absolute individual rights, that it is moral to be selfish, and that we are likely to be so.

These are old mistakes, but it is sad how often libertarianism is rejected for these mistaken reasons.

1. First, it is true that libertarians believe that people should have individual rights, but it is not because our actions have no effect on other people. Libertarians recognize that we are interconnected and argue that our mode of interaction should not be through coercion but through voluntary associations.  Social interactions work better through voluntary associations.

Goods and services are better provided through a competitive market than through monopoly government provision.  Similarly, in a free society, as de Tocqueville saw, people form voluntary associations to serve community ends and these associations generally work better than government does through coercion.    

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The Surprising Economics of Consumer Credit

Credit Card  US Paper  - Stock Image

In the past few years, popular books about economics, such as Freakonomics and The Undercover Economist, have become surprise best-sellers, wowing readers by showing how economic reasoning can be applied to everyday topics like real estate commissions, sumo wrestling, and even street gangs. Yet a book had yet to be written applying economic logic to Americans’ use of credit. Now, four economists set out to change this, and readers may be surprised to learn that when it comes to credit, most of what they know “ain’t so.”

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Chicago’s Foolish Decision to Hike the Minimum Wage

I live in Chicago, which is a badly governed city in the worst governed state in the nation. And it has just made another serious mistake, raising its minimum wage to $13.00 by 2019 and to $10 by next year. Ultimately, the new minimum will represent an increase of more than 50 percent over the present one.

Many of the criticisms of minimum wage are well known. For instance, it tends to increase unemployment and this effect falls most harshly on the least skilled. Moreover, earned income tax credits are a superior, targeted way of helping the poor. But there are some very unfortunate aspects of this decision that are peculiar to Chicago and the time in which we live.

First, Chicago is part of a much larger metropolitan area.

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