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?