commerce clause question
laycockd at umich.edu
Wed Mar 28 15:24:13 PDT 2007
Probably also the power to tax, maybe the power to borrow, and the
powers to raise an army and navy, declare war, to make rules for the
regulation of the land and naval forces, to provide for calling forth
the militia and for arming and governing them. All those activities
surely affect commerce, but it is hard to describe them as regulating
Some powers avoid arguments; Congress can regulate DC without
requiring anyone to show an affect on commerce.
Some of the more specific powers come with their own limitations
that are presumably not overruled by the commerce power. Bankruptcy
laws must be uniform; patents and copyrights must be for limited
times. The Court read that one out, but not because of the Commerce
Clause (or at least not explicitly).
Remember too that most of the expansion of the Commerce Clause
resulted from changes in facts on the ground. The economic
integration of the economy rendered by steamboats, railroads,
telegraphs, telephones, radios, televisions, and the Internet
progressively obliterated any viable distinction between local and
Quoting Ilya Somin <isomin at gmu.edu>:
> I am no big fan of the modern interpretation of the Commerce
> and it is indeed true that it renders most of the rest of Congress'
> enumerated powers irrelevant or superfluous. However, one important
> power that probably isn't superfluous is the Spending Clause. The
> Commerce Clause gives Congress the power to "regulate" by imposing
> costs on the private sector (and perhaps on state governments) but
> not the power to spend money. We need the Spending Clause for the
> latter, even under the most expansive modern interpretations of the
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
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