For Bree: Part Three

Now for our final installment...

The Tenth Amendment seems pretty clear, on it's face:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But then there's this tricky little part...back in the beginning, Article I, Section VII:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

It makes sense that the federal government would be in charge of regulating commerce between the states, since giving that authority to the states themselves would be a never ending source of conflict and empowering certain states to regulate interstate commerce would necessarily give them an unfair advantage.  So, the "Commerce Clause" makes perfect, rational sense.

In 1787, what constituted commerce was pretty clear.  There also wasn't a large volume of commerce to regulate, and even when there were some goods manufactured exclusively in one state or several that were not manufactured in others, transportation was not that great, so it was fairly easy to get a handle on interstate commerce.

Enter progress...westward expansion, railroads, then cars and trucks, then airplanes...electricity, telegraph, telephones, Internet...holy crap!  What is commerce now, and how do we regulate it when we can't even define it?  Or track all of it? 

The Supreme Court jumped into the fray early on, in 1942, in Wickard v. Filburn, declaring that Congress did have the power to regulate commerce transacted wholly intrastate, or specifically in this case activity that did not even amount to commerce at all, if it had an effect on interstate commerce.  See, the federal government imposed limits on the amount of wheat any one farm could grow based on acreage in an attempt to drive up wheat prices during the Great Depression (and presumably help wheat farmers?).  Mr. Filburn was growing more than his allotted amount, but was NOT selling it.  He was just using it on his own farm, and for his own personal consumption.  But the fact that he was not buying the extra wheat he needed in the marketplace had an effect on that marketplace, and the wheat market was legally regulated by the federal government.

This one case forever changed the scope of federal power, because it allowed the government to regulate all sorts of activity that it could not before, so long as they could prove a link to interstate commerce.  It was sixty years until the Supreme Court backed off this interpretation and began re limits on what exactly can be called a link to interstate commerce, but the damage has already been done.

We see this debate vividly today, with regards to the health care legislation popularly called "Obamacare."  The Administration claims Congress has the authority to mandate individuals purchase health insurance under the Commerce Clause, because failure to do so affects interstate commerce since uninsured individuals still utilize health care services and often do not pay.  Opponents argue, however, that this is beyond the purview of the Commerce Clause, because the failure to purchase health insurance is decidedly non-economic in nature, even if it has effects on commerce as a whole.  Although Congress has been granted power to regulate non-economic activity that affects interstate commerce this presents a new and novel question (and one the Supreme Court is likely to take up) since the law essentially forces everyone to engage in commerce, rather than simply regulating a non-economic activity.  They posit, and rightly in my opinion, that it would be no different than Congress requiring everyone to purchase one carton of Florida Orange Juice per week, since the failure to buy Florida OJ negatively affects the economy of Florida and interstate commerce.  This is not the only constitutionally questionable provision of the law, but it is the strongest and most unique constitutional question that must be answered.

So...after basically composing a novel, I hope I explained the basis of Federalism, the foundation of my opinions about Federalism, and why I prefer more states' rights to more federal power.  You don't have to agree with me, and I strongly urge you to research the topic more on your own.  My only goal was to help you navigate out of the weeds of the issue a bit, because I know how I felt when I first encountered the subject in college.  I thought I'd never be able to understand it completely, then it turned out to be my favorite constitutional law subject.  Everyone's attracted at first to the sexy amendments...First, Second, Fourth...but over time the Tenth really grew on me, even though it's had a long and complicated case history.  It really is the most heavily disputed and most controversial of all the amendments.  I never expected to get so caught up in it, but then I ended up writing both of my theses on some variation of it.  It is critically important to the functioning of our government, and the security of our union, and I wish more people understood it and all its implications.