- The Washington Times - Tuesday, October 10, 2000

Do birds migrating across state lines qualify as interstate commerce? That is the key, though seemingly nonsensical, question facing the Supreme Court this month in Solid Waste Agency vs. Army Corps of Engineers.
At issue is whether the Commerce Clause ("Congress shall have the power to … regulate commerce … among the several states") justifies the "migratory bird rule," by which the federal government has asserted regulatory authority over small intrastate wetlands that provide habitat for migratory birds.
Specifically, does the cumulative effect of migration on the large numbers of people who cross state lines to watch or hunt such birds qualify it as interstate commerce, providing federal regulatory authority (the argument accepted by a federal appeals court)?
If the Supreme Court continues its rediscovery of the Commerce Clause as a restriction on federal power, as in overturning the Violence Against Women Act last term, it will find this not sufficiently related to commerce to authorize federal regulation.
The result could be far reaching, because the Commerce Clause, as judicially abused for most of the 20th century, is the sole constitutional "hook" upon which virtually all federal regulatory agencies are justified (why it is often called "the everything clause" in law schools). Returning the Commerce Clause to its original interpretation could roll back much of the current federal regulatory apparatus nowhere explicitly authorized in the Constitution.
The Commerce Clause arose because under the Articles of Confederation, states were imposing duties on goods shipped from other states, thus funding benefits for their citizens from other states' citizens. It was designed to stop this interstate extortion, creating the world's largest free trade zone.
As The Federalist makes clear, it was intended to take the issue out of state hands by allowing only Congress to regulate interstate commerce (with "regulate" taking its older meaning of "to make regular by removing impediments") but not to create an extensive federal power to control the minutiae of economic life (following regulate's more recent meaning of "to tell others what to do").
In Federalist 11, Alexander Hamilton indicated the Commerce Clause's intent as a limitation on states, rather than federal carte blanche, describing it as "a prohibitory regulation, extending … throughout the states," warning that without such restrictions on states, "this intercourse would be fettered, interrupted and narrowed by a multiplicity of causes."
In Federalist 42, James Madison described the clause's purpose as "the relief of the States which import and export through other States, from the improper contributions levied on them by the latter." He wrote not of activist federal dictates over anything remotely related to commerce, but rather of "restraints imposed on the authority of the States," citing Switzerland, where "each Canton is obliged to allow to merchandises a passage through its jurisdiction … without an augmentation of the tolls," as his main illustration.
The narrow scope of the commerce clause was cemented by Madison, in Federalist 45: "The powers delegated by the proposed Constitution to the Federal Government, are few and defined… . The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and prosperities of the people; and the internal order, improvement, and prosperity of the State." It was this stringent constraint on the federal power being granted that made the clause one "few oppose, and from which no apprehensions are entertained."
Despite our Founders' intent, court rulings have progressively changed this ban of state restrictions on trade to an open invitation to virtually any federal dictate, to the point where the federal government has almost unlimited power to control as it sees fit.
Until 1887, the Commerce Clause was only used to overturn state restrictions on interstate commerce. But then it began being twisted to justify congressional restrictions on anything it chose, with the virtual death blow coming in Wickard vs. Filburn, in 1942.
The opinion in Wickard eliminated virtually all bounds on congressional powers under the Commerce Clause, by holding that it included federal power to ban farmers from growing wheat for their own consumption. "Even if appellee's activities be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." In other words, the federal power to regulate interstate commerce extended to banning (as far from "removing impediments" to trade as is possible) production (not commerce) occurring in a single state (not among states). Anything judged to have a substantial effect, including any "practices affecting prices" that is, any business practice became fair game for federal regulators. The unhappy results we see in the alphabet soup of regulatory acronyms now engulfing us.
If the Supreme Court upholds and extends precedents such as Wickard vs. Filburn, the Constitution cannot put a stop to onerous and hyperactive federal regulation. But this case provides hope that, by taking the Constitution seriously again, omnipresent federal regulatory powers can be reined in. And the alternative is chilling. As Chief Justice William Rehnquist said in the closely related 1995 Lopez ruling: "If we were to accept the government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate."

Gary M. Galles is a professor of economics at Pepperdine University in Malibu, Calif.



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