In recent weeks, we’ve discussed cases where SCOTUS held Congress could only regulate local activity that had a “direct” effect on INTERstate commerce. But US v Darby (1941) changed that, where SCOTUS held Congress can regulate local activity if it merely has a substantial effect on interstate commerce – even if the local activity itself is NOT commerce. While this is an alarming expansion of Congress’ “power to regulate commerce,” that’s not all. The Act in question “also sets up an administrative procedure whereby those standards may from time to time be modified generally as to industries subject to the Act or within an industry in accordance with specified standards, by an administrator acting in collaboration with ‘Industry Committees’ appointed by him.” So, people appointed within the Executive Branch are “allowed” to make substantive changes to the law, and SCOTUS never questioned that blatant violation of the separation of powers.

In NLRB v Jones & Laughlin Steel Corp (1937), the case hinged on the National Labor Relations Act which gave the National Labor Relations Board (NLRB) the power to punish “unfair labor practices [merely] affecting commerce.” Although SCOTUS allowed the NLRA to stand, and effectively expanded the reach of Congress, important sentiments were shared. SCOTUS held the scope of the power to regulate INTRAstate activity “must be considered in the light of our dual system of government, and may not be extended so as to . . . effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” Yet 89 years later, our government seems pretty darn centralized, doesn’t it? The federal government meddles in virtually every aspect of our lives.

In the 1930’s, the National Industrial Recovery Act was enacted. Under it, private businesses and unions could adopt “Codes of Fair Competition” that would become legally enforceable once approved by the President. President Roosevelt adopted the Live Poultry Code for NYC. The Schechter Brothers operated a Kosher slaughterhouse in Brooklyn, and did NOT ship their chickens out of state. The federal government prosecuted them for violating the code. The NIRA empowered the executive branch to regulate “any transaction in or affecting interstate or foreign commerce.” SCOTUS unanimously concluded that Congress lacked the power to enact a law that regulates activity that only indirectly affects interstate commerce (such as the Schechter slaughterhouse), but isn’t there a bigger concern? In our Constitutional Republic, only the legislative branch can create laws. NO private entity NOR executive branch official or agency has the authority to create regulations for We The People. PERIOD.