Because of the Labor Day holiday, my Advanced Topics in Law class did not meet this week. Next week, however, we will resume full steam ahead with “the Commerce Clause problem.” But first things first: Why is the venerable Commerce Clause, which appears in Article I, Section 8 of the Constitution, a problem? I will tell you why! In brief, the powers of the Congress are supposed to be–in the immortal words of James Madison in Federalist Paper #45–“few and defined.” The problem is that one of Congress’s “few and defined” powers includes the power to regulate interstate commerce under the Commerce Clause, and almost every single human activity has an effect, however remote, on commerce. Accordingly, what real limits, if any, does the Commerce Clause impose on the Congress?
By way of example, does Congress have the power to prohibit the private ownership of dogs or cats? What about exotic animals like tigers and lions? If enacted into law, for example, the proposed “Big Cat Public Safety Act” would prohibit the sale, possession, and breeding of big cats–thus making it illegal to own a tiger or lion. (Look it up!) At the same time, this bill exempts certain wildlife sanctuaries like Harold and Carole Baskin’s Big Cat Rescue in Tampa, Florida–an exemption that potentially raises some “equal protection” concerns. Are big cats an article of commerce? Let’s assume for the sake of argument that Congress does have this power–that Congress can ban the private ownership of big cats. I now wish to pose the following second-order question: Why should the courts have the self-declared power to declare a democratically-enacted law unconstitutional?