In 2010, Congress passed ObamaCare (ACA) & 26 states sued. In NFIB v Sebelius (2012), SCOTUS noted their previous cases all dealt with regulation of “activity,” while the ACA’s individual mandate “compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.” Congress had never before mandated that people engage in economic activity, and then regulate that mandated activity. The Court held the Commerce Clause did not authorize Congress to compel people to engage in activity. Rather, a power to compel people to do business with a private company was a “great massive and independent power” that was “beyond those specifically enumerated.” It further stated that to hold otherwise “would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Goverment.” They held the ACA isn’t imposing a mandate enforced by a penalty, but rather gave people an option to buy insurance or pay a “modest tax.” 🤦 Finally, in 2017, Congress set the tax to $0. It’s ironic that although the Court recognized how insane it would be to allow Congress to force people to engage in specific economic activity, they found an excuse for allowing such blatantly unconstitutional legislation to stand!

PART 3 OF 3. In Gonzales v Raich (2005), SCOTUS upheld the Controlled Substances Act (where Congress prohibits the cultivation, possession and distribution of marijuana), ruling it permissible under the Commerce Clause. However, Art 1, Sec 8 says “Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” 1: This does NOT include the power to regulate only LOCAL commerce. 2: Congress may “regulate” commerce, NOT prohibit it. The Gonzales Court used Webster’s Dictionary definition of “economic” to rule for the feds. But Webster’s defines “regulate” as “to govern or direct according to rule; to bring order, method or uniformity to; to fix or adjust the time, amount, degree or rate of.” Webster’s defines “prohibit” as “to forbid; to prevent from doing something.” Clearly, to “regulate” does not include the power to outright “prohibit.” So SCOTUS & Congress only apply ordinary meaning to words when it suits them…

PART 2 OF 3. In Gonzales v Raich (2005), SCOTUS tackled the tension between CA’s Compassionate Use Act & the US Controlled Substances Act (CSA). Plaintiffs grew marijuana for their own personal medical use. CA’s law allowed them to do so, but the CSA did not. Plaintiffs argued the feds couldn’t regulate marijuana unless it was an economic activity “associated with sale, exchange or barter,” which theirs was not. However, SCOTUS ruled for the feds, applying a broader definition of “economic.” But what’s worse is that SCOTUS held “Congress has the power to regulate PURELY LOCAL ACTIVITIES” when doing so is necessary to implement a comprehensive national regulatory program. 🤯NOWHERE in the Constitution does it allow Congress to enact general national regulatory programs! Congress was given specific powers. Regulating PURELY LOCAL COMMERCE is NOT one of them! (Art 1, Sec 8: The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.)

PART 1 OF 3. In Gonzales v Raich (2005), SCOTUS tackled the tension between CA’s Compassionate Use Act & the US Controlled Substances Act (CSA). Plaintiffs grew marijuana for their own personal medical use. CA’s law allowed them to do so, but the CSA did not. Plaintiffs argued for a common sense approach, where the feds couldn’t regulate marijuana unless it was an economic activity: “associated with sale, exchange or barter,” which theirs was not. However, SCOTUS ruled for the feds, defining “economic” as “the production, distribution, and consumption of commodities,” thus applying Congress’ Commerce Power to everything under that large umbrella. This allowed the feds under the CSA to ban Plaintiff’s personal growing & medical use of marijuana. The wording of this case allows Congress to regulate even the fruit you grow in your own backyard. However, it’s NOT what the Constitution allows! (Art 1, Sec 8: The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.)

Using the commerce clause as the constitutional basis, in 1994 Congress enacted the Violence Against Women Act (VAWA), which created a private cause of action that allowed victims of “gender-motivated violence” to sue in federal court. But in US v Morrison (2000), SCOTUS’s opinion was based on the fundamental premise that Congress lacks a general police power. SCOTUS clarified here that Congress may not regulate wholly INTRAstate non-economic activity regardless of its effects on interstate commerce. Further, SCOTUS held that “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Thus, VAWA was held unconstitutional.

2A Threatened by SCOTUS’ interpretation of the Commerce Clause! In 1992, high school senior Alfonso Lopez carried a concealed 🔫 into school, & found guilty of violating the Gun-Free School Zones Act. On appeal in US v Lopez (1995), SCOTUS held the Act exceeded Congress’ power under the Commerce Clause (there was no other constitutional authority for it). SCOTUS reminded us “the Constitution creates a Federal Government of enumerated powers,” and “the powers delegated . . . to the federal government are few and defined.” SCOTUS then held Congress could only regulate INTRAstate activity that substantially affects INTERstate commerce if the INTRAstate activity is economic in nature. But, as Congress amended the Act to require the prosecutor to prove the 🔫 “moved in or otherwise affects INTERstate commerce,” it is now considered “constitutional.” So much for the 2nd Amendment!

Congress enacted a law to get states to raise their drinking age to 21, withholding some federal highway funds from states that wouldn’t. South Dakota’s drinking age was 19, so they sued. In South Dakota v Dole (1987), SCOTUS laid out 5 limits on Congress’ power to attach strings on money given to states. 1st: Congress’ spending “must be in pursuit of ‘the general welfare.'” 2nd: Congress must place conditions on the funds “unambiguously.” (States need to know the conditions before accepting “federal” money.) 3rd: the conditions must relate to “the federal interest” for which the spending program was established. 4th: “[o]ther constitutional provisions may provide an independent bar to conditional grant of funds.” 5th: a condition becomes unconstitutional when “the financial inducement offered by Congress” coerces the states to take certain action. In cases decided after Dole, SCOTUS primarily focused on the 5th factor – whether a spending condition was coercive. WHY THIS IS WRONG: https://wp.me/pecX6i-4i0!

We’ve discussed how SCOTUS handled discrimination by expanding Congress’ commerce powers instead of utilizing the Equal Protection Clause 🤯🤦in the Heart of Atlanta Motel case. In Katzenbach v McClung (1964), SCOTUS made it even worse. In McClung, Ollie’s BBQ restaurant in Birmingham, AL, would not serve black patrons. Unlike the Heart of Atlanta Motel, though, Ollie’s did not serve out of state customers. Nonetheless, SCOTUS found “that a substantial portion of the food served in the restaurant had moved in interstate commerce,” thus, Congress was allowed to regulate the restaurant under the Commerce Clause. Here, SCOTUS held Congress had jurisdiction to regulate local activity that utilized items that had previously traveled in interstate commerce. Congress often relies on these expanded “powers” when regulating local conduct to this day. So, while prohibiting racial discrimination was a good thing, expanding Congress’ commerce powers beyond true constitutional authority was a constitutional catastrophe!

Title II of the Civil Rights Act of 1964, addresses discrimination in public accommodations. The Heart of Atlanta Motel refused to rent rooms to black patrons. Its owner challenged the constitutionality of Title II, arguing Congress lacked authority to prohibit segregation in a local motel. In Heart of Atlanta Motel v US (1964), SCOTUS rejected that claim – but not for the reasons you’d think! They ruled Congress has the authority to prohibit discrimination in public accommodations . . . under the Commerce Clause of the US Constitution 🤔🤷. Their reasoning expanded the authority of Congress under the Commerce Clause beyond its plain language of “regulat[ing] Commerce . . .among the several States,” but that’s not the worst part. Only 1 Justice determined Congress could enact the Civil Rights Act under its 14th Amendment authority! The rest held it could not! More on this insanity at https://wp.me/pecX6i-4cq

The Agricultural Adjustment Act restricted the amount of wheat farmers like Rosco Filburn could grow as a means to increase prices, thereby benefiting farmers. Filburn grew more than his quota, using the “extra” to feed his own livestock at a lower cost. He then benefited by selling his “quota” wheat at market for a higher price. In Wickard v Filburn (1942), SCOTUS acknowledged Filburn’s small amount of locally consumed wheat did not by itself substantially effect interstate commerce. Yet when all of the locally consumed wheat Nationwide is considered together, in the aggregate, those intra-state activities substantially effect interstate commerce. Thus, Congress was allowed to stop Filburn from growing the extra wheat to feed his family & livestock. Although this case is mostly still binding precedent, the fact remains the Constitution only allows Congress to regulate commerce. A man growing wheat to feed his family & livestock is not commerce. Any holding to the contrary stretches the term into absurdity.

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.

Legal tender is a hot topic these days, with the discussion covering everything from bitcoin to “cashless” businesses. “Legal tender” is the money (including bills and coins) approved in a country for the payment of debts, the purchase of goods, and other exchanges for value.  In Hepburn v Griswold (1870), SCOTUS held that although Congress had the power to issue paper notes as currency, it did not have the power to make this paper currency a “legal tender.” The court noted the federal government has the power to “regulate commerce,” “to coin Money,” and “to borrow money,” but found there is “no express grant of legislative power” to create paper legal tender. Of note, in this case the court concluded that “an act of making mere promises to pay dollars a legal tender in payment of debts previously contracted, is not a means appropriate . . . to carry into effect any express power vested in Congress.” The next year, in Knox v Lee, SCOTUS held the Legal Tender Act was constitutional, as necessary in times of war. Then in Juilliard v Greenman (1884), SCOTUS expanded that, holding that Congress could make paper currency “a legal tender for the payment of private debts” even in times of peace. Congress now relies on 31 USC 5103, which states that all US coins & currency are legal tender for all debts, taxes and dues. So, which court got it right? Check out https://restorefreedomkh.com/njiu for the answer!

In 1867, Congress criminalized the sale of oil that was made from petroleum, including transactions that were completed entirely within a single state. Mr. Dewitt was indicted for selling oil in Detroit, MI, and appealed his case to SCOTUS. SCOTUS held in US v Dewitt (1869) the Commerce Clause is a “virtual denial [to Congress] of any power to interfere with the INTERNAL trade and business of the separate states.” This rightfully articulated the limited authority of the federal government in matters of solely intrastate commerce. The one exception, SCOTUS held, is that Congress can interfere with internal trade when it is a “necessary and proper means for carrying into execution some other power expressly granted” in the Constitution.  Thus, when considering the scope of Congress’ authority regarding matters of commerce, the court must not only consider the Commerce Clause, but also the Necessary and Proper Clause.

In 1842, SCOTUS handed down the terrible decision in Prigg v Pennsylvania.  SCOTUS drastically expanded the federal government’s so-called power under the Necessary and Proper Clause, and made other unconstitutional rulings in this decision. But the one good thing to come out of this decision was that the court held states cannot be “compelled to enforce” the Fugitive Slave Act.  Rather, the national government is responsible for carrying into effect its own policies.  This limitation on congressional power became the foundation for the “anti-commandeering doctrine.” Thus, SCOTUS now holds that Congress lacks the power to “commandeer,” or force, states to implement federal programs.

In 1833, SCOTUS decided Barron v Baltimore, claiming the Bill of Rights only limited Federal power, not State power. The 39th Congress drafted the 14th Amendment, in part, to reverse the decision in Barron. However, we must look to the text itself for the answer on this issue. Yes, the 1st Amendment references “Congress shall make no…” but NONE of the other Amendments have such language. Nothing in the other initial amendments allows the States, while prohibiting Congress, from taking specified actions. Rather, the language of those Amendments focuses on the perspective of the person – and how the individual’s rights shall not be infringed. Period.

In 1824, SCOTUS decided Gibbons v Ogden, interpreting the Constitution’s Commerce Clause. These days, the government uses the Commerce Clause as an excuse to exercise broad control over many aspects of our lives. While the Gibbons decision seemed to rely on a broad definition of commerce, it still properly recognized that Congress only has the authority to regulate commerce with foreign nations, commerce among the several states, and commerce with Indian tribes. In other words, in matters of solely intrastate commerce, Congress has NO authority to regulate. Unfortunately, these days our government (including SCOTUS) unconstitutionally allows Congress to interfere with intrastate commerce. Remember, the government only has those powers expressly granted to it in the Constitution. We The People need to start reining our government in.

In McCulloch v Maryland (1819), SCOTUS did some interesting things 🤔. First, it created a test still used today to determine the scope of Congress’ implied powers. What’s interesting about that? Our constitution was not written open-ended to provide for any implied powers. Congress only has the powers expressly included in Article 1. Our government has no inherent powers; it derives its powers from We The People, and only those we specifically bestowed upon it in the text of the Constitution. In other words, if it’s not written in the Constitution, the government has NO authority to do it. Second, SCOTUS explained that “the power to tax involves the power to destroy.” Yet, the government has taxed our homes, our purchases, our income, our clothing, our services, fuel for transportation, etc. So, why is there no accountability for their excessive taxation that is causing so much destruction for the average American?