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Who are we kidding?

Seriously. Insty notes that he found something bad about Roberts. On the commerce clause:

I appreciate it’s a hypothetical, and you will as well, so I don’t mean to be giving bindings opinions. But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce. Obviously if you were successful in cloning an animal, that’s not going to be simply a local phenomenon. That’s going to be something people are going to…

This was in response to Chuck Schumer essentially asking if Congress could do whatever the Hell it wanted with regard to cloning (or anything, really). So, dear reader, here’s a question for you all:

Why do we even fucking pretend that there is a commerce clause? Our government acts like it’s not there by simply stating that, at some point, everything is involved in commerce. There is no commerce clause for all intents and purposes.

8 Responses to “Who are we kidding?”

  1. countertop Says:

    Until we overturn Wickard v Filburn were stuck in this situation. There was some hope that Raich would do that, it didn’t. If we can keep the charade going for a bit longer and get someone as good as Roberts on the court for the next two vacancies, there is a real chance to making progress.

    Be patient. It might happen.

  2. Xrlq Says:

    There is no commerce clause for all intents and purposes.

    Actually, it’s the opposite problem: everything is covered by the commerce clause. If there were no commerce clause, 99% of the federal government would grind to a halt.

  3. Addison Says:

    “If there were no commerce clause, 99% of the federal government would grind to a halt.”

    Damn good idea. Petitions for everybody!

  4. Brutal Hugger Says:

    The commerce clause is the thread with which the entire tapestry of federal regulations is woven. If you pull that thread, our whole system of law unravels, along with everything that depends on it. I support a stricter view of the comcerce clause, but I have my doubts that we’d really be better off if Wickard were overturned tomrrow with no preparation.

    Also, the commerce clause was conceived in a world where people lived very local lives. Lots of activities weren’t interstate. But we don’t live in that world anymore. New Yorker are more connected and interdependent with people in New Orleans than they once were with people in Connecticut. There are good reasons why the commerce clause has increasingly justified federal regulation.

    That said, we’ve stretched the commerce clause way too thin. It’s time to roll it back. Lopez and Morrison were good first steps, but they are only the first whispers of what is required to fix things.

    I also don’t think that narrowing the commerce clause gets us where we want to go. The reasonably restricted commerce clause still leaves Congress free to regulate far more broadly than I like. Congress has to rein itself in and come up with a new theory of governance– that’s not a question of Constitutional law but of political theory. While I support the Con Law pushback, it’s only a partial solution.

  5. Mike Says:

    Roberts: “The Thinking Man’s Souter”.

    You heard it here first.

  6. _Jon Says:

    I think the only way it will get fixed is via an Amendment that more specifically defines the Commerce Clause.

    Right now we are horribly, horribly screwed.

  7. Chris Says:

    When I took constitutional law in law school, about 25 years ago, I read a SCOTUS case in which it held that interstate commerce existed where a farmer grew crops for consumption by his own farm animals. No sales, transport, export or anything.

    I remember feeling disillusioned about the SCOTUS, and that disillusionment continued as I read more of its opinions.

    I was deeply disturbed by Roberts’ remarks on the IC clause.

  8. trainer Says:

    Roberts: “The Thinking Man’s Souter”. You heard it here first.

    Oh yes…and after days of hearings, he is so sweetly politic on items that touched 2A issues….

    You can say on the one hand that he needs to talk like that to get confirmed…

    I have a bad feeling about this guy. Would it be too much to ask for a justice who would rip the lungs out of anyone who wanted to touch the 2A? Or the 5A? Or any freakin’ A?

Remember, I do this to entertain me, not you.

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