11.1 The institutional design of congress  (Page 7/23)

Understanding the limits of congress’s power to regulate

One of the most important constitutional anchors for Congress’s implicit power to regulate all manner of activities within the states is the short clause in Article I, Section 8, which says Congress is empowered to “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” The Supreme Court’s broad interpretation of this so-called commerce clause has greatly expanded the power and reach of Congress over the centuries.

From the earliest days of the republic until the end of the nineteenth century, the Supreme Court consistently handed down decisions that effectively broadened the Congress’s power to regulate interstate and intrastate commerce.

The growing country, the demands of its expanding economy, and the way changes in technology and transportation contributed to the shrinking of space between the states demanded that Congress be able to function as a regulator. For a short period in the 1930s when federal authority was expanded to combat the Great Depression, the Court began to interpret the commerce clause far more narrowly. But after this interlude, the court’s interpretation swung in an even-broader direction. This change proved particularly important in the 1960s, when Congress rolled back racial segregation throughout much of the South and beyond, and in the 1970s, as federal environmental regulations and programs took root.

But in United States v. Lopez , a decision issued in 1995, the Court changed course again and, for the first time in half a century, struck down a law as an unconstitutional overstepping of the commerce clause.

Five years later, the Court did it again, convincing many that the country may be witnessing the beginning of a rollback in Congress’s power to regulate in the states. When the Patient Protection and Affordable Care Act (also known as the ACA, or Obamacare) came before the Supreme Court in 2012, many believed the Court would strike it down. Instead, the justices took the novel approach of upholding the law based on the Congress’s enumerated power to tax, rather than the commerce clause. The decision was a shock to many.

National Federation of Independent Businesses v. Sebelius , 567 U.S. ___ (2012).

And, by not upholding the law on the basis of the commerce clause, the Court left open the possibility that it would continue to pursue a narrower interpretation of the clause.

What are the advantages of the Supreme Court’s broad interpretation of the commerce clause? How do you think this interpretation affects the balance of power between the branches of government? Why are some people concerned that the Court’s view of the clause could change?