No Limits on Federal Power?

We're going to be hearing a lot about the commerce clause, the dormant commerce clause, and preemption thanks to anti-federal health care lawsuits by state attorney generals. If they rely on the standard arguments made in such cases, they (and we) will surely lose.

Preemption is a concept of Article VI of the United States Constitution:

This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The only condition that needs to be satisfied is that the federal law be shown to have been made pursuant to the Constitution. The reach of the interstate commerce clause is well-known and documented: Basically any activity or product that "affects interstate commerce" can be federally regulated.

What affects interstate commerce? Just about everything. In one of the few cases nullifying a federal law as exceeding the reach of the commerce clause, the majority challenged the dissenters to name an area of activity that the federal government cannot regulate. Needless to say, no answer was forthcoming. When the standard is "affecting interstate commerce," there is no activity or product that is separated by more than one degree.

To explain the fact that a certain activity has not ever been regulated by the federal government since the founding, federal courts have adopted the construct of the "dormant commerce clause." Under this theory, the federal government has always had the power to regulate the activity in question but has only now chosen to regulate it -- it has awakened the power. Having now chosen to regulate it, state law is preempted even if the state has regulated the activity for the past two hundred years. 

The state attorneys general will argue that the states have always had the exclusive power to impose personal mandates on their citizens. The federal counterargument is that the provision of health care services involves goods through interstate commerce. Evidence that the states have regulated this activity for two hundred years is irrelevant with respect to the dormant commerce clause. The federal health care law having been made pursuant to the Constitution -- namely, the interstate commerce clause -- any contrary provisions in the state's constitution or laws are nullified pursuant to Article VI.

There appears to be no escape from the logic of the federal argument: Once a federal law has been shown to be made pursuant to the Constitution, state laws and/or constitutions are preempted. When the standard is as broad and as vague as "affecting interstate commerce," there is no activity that cannot be regulated by the federal government.

That there is no activity that cannot be regulated by the federal government is the flaw in the federal argument. For example, the Hobbs Act is the federal law prohibiting armed robbery affecting interstate commerce. It has repeatedly been challenged on the basis that it exceeds Congress's power to regulate interstate commerce, and it has been repeatedly upheld as a valid exercise of the commerce clause. But some cases highlight a problem: Why should some individuals be prosecuted in federal court for comparatively small ("lemonade stand") armed robberies while others are prosecuted in state court for the same or greater armed robberies? That is, if all armed robberies affect interstate commerce, then why are some prosecuted in state courts?

This disparate and unequal treatment has struck some Circuit Court Judges as arbitrary. Some of these judges, wishing to overturn the particular case, opined that Congress should make its intentions clear as to which armed robberies should be federally prosecuted so that comparatively small cases would be excluded from federal prosecution. In support, the Clear Statement Doctrine was cited: If the federal Congress wants to change the historical relation between the states and the federal government, then it is obligated to state its intention to do so clearly and unequivocally. The only problem with that rationale is that it concedes the basic point that the federal government has the authority to make all armed robbery prosecutions exclusively federal.

If Congress has the power under the commerce clause to make all armed robberies affecting interstate commerce (that is, all armed robberies) federal crimes, then it may, according to the Clear Statement Doctrine, expressly nullify all state armed robbery laws in all states. If Congress has the power to nullify state armed robbery laws, then it has had that power from the beginning. If Congress has had that power from the beginning, then states have never had it: They merely exercised that power until Congress awakened its dormant commerce clause power.

One can substitute any activity or product affecting interstate commerce for armed robbery, and one would necessarily reach the same conclusion. Thus, if one can make a reasonable argument that divorces, adoptions, marriages, real estate transactions, contracts, personal injuries, rapes, murders, or shoplifting affect interstate commerce, then one would have to conclude that the federal government, by way of Article VI, has the exclusive right to regulate that area of law. If Congress has the exclusive right to regulate that area of law, then the states never had it. 

That states regulate those areas of law now is not because their own citizens gave their respective states the power to do so in the state constitution. The people have delegated those powers to the federal government in the commerce clause, and the federal government has permitted the states to regulate until such time as it exercises its power through the dormant commerce clause.

Every power the federal government has through the commerce clause is one the state has never had. If everything that affects interstate commerce (which, by today's standards, is every imaginable activity) can be federally regulated, then the states never had any power. If the states have no exclusive regulatory power, then they are simply temporary custodians of federal power until the federal government chooses to retake that power.

That states have no exclusive power is an absurd conclusion. But it is not easy to see now because the federal government "discovers" one power at a time. But if all activities affect interstate commerce, then what other conclusion is there?