Drawing a Line in the Sand

[Kennedy 0]

I was going to name this something about constitutional limits or small government, but I didn't want it mistaken for the current "guess what I'm thinking" thread.

This Does Draw a Line in the Sand

The article got me thinking (it's not that interesting, well written, or recent). Just how elastic should the elastic clauses be? Do the commerce clause and the general welfare clause mean the government can do as it pleases and the rest is just fluff, or are there areas the Feds should not be involved in? If the latter, does the current federal government operate outside those bounds, or are the boundaries being obeyed?

I think a lot of disagreements here are caused by fundamental differences in how some folks answer the above question, and any particulars are irrelevant. If posters are in different categories as listed, it's difficult to see them agreeing on much of anything.

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
1*

[ryoder 1,590]

Interesting.
I'll be curious to see LawRockets's take on this.

"There are only three things of value: younger women, faster airplanes, and bigger crocodiles" - Arthur Jones.

[Andy9o8 2]

From a standpoint of Federal law, it's meaningless. The Wyoming Legislature has no more authority of law to deem something to not violate Federal law (even in Wyoming) than a Chicago alderman does.

The Wyoming legislature only has the authority to prescribe what is and is not lawful under Wyoming law. Any "declaration" by a state legislature as to what does and does not comply with (or violate) federal law is, at best, a mere expression of opinion; it does not carry any force of law that will be recognized in a federal court - and federal court, not state court, is where violations of federal law are prosecuted.

So, for example, Wyoming police may choose to not arrest and deliver such cases for prosecution, but unless the US Attorney General or the US Attorney for the District of Wyoming (who is subordinate to the USAG) orders otherwise, Federal LEOs in Wyoming will still arrest and prosecute in Federal Court under Federal law.

For further example, if the person the Federal LEOs arrested were then to be prosecuted, by the US Attorney's office, in the US District Court for the District of Wyoming, with violating Federal law for doing something the Wyoming Legislature has "declared" to not be a violation of Federal law, it is quite possible that the Federal judge on the case might not even allow the Wyoming Legislature's law to be raised as a defense in the first place at trial.

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Now there's a slightly separate issue: under Federal law, can a convicted misdemeanant in Wyoming lawfully buy and/or possess a gun in Wyoming, where the gun was manufactured in Wyoming and is only possessed in Wyoming? Possibly not, because virtually everything these days can be argued to involve some element of interstate commerce and/or interstate communications. (But see, for example, US v. Lopez, discussed in my post #5 below). But whether it is or not, the sole determinant of that issue will be Federal law, as enacted by the US Congress and as interpreted and applied by the Federal courts. Anything done by the Wyoming Legislature will likely have absolutely no bearing on the issue, except possibly to raise the issue for consideration by the Federal courts.

[Kennedy 0]

I completely understand and completely agree with what you said. Like I said in the OP, the article itself really doesn't interest me. It's the underlying question that does interest me. If our federal government is based on the constitution, then what the Feds do must comply with the constitution.

So, does the constitution set out limits on federal scope and authority? If so, does the current state of the federal government match with it's defined limits or not. Of the constitution doesn't set any real limits (either because of interpretation of commerce and general welfare clauses, or because it's a stupid old paper written by rich white slave owners, or whatever reason) then what does define our federal government?

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
1*

[Andy9o8 2]

I think the modern interpretation and application of the interstate commerce and general welfare clauses has greatly expanded the scope of federal authority, say, since World War II.

What are the proper Constitutional limits of federal versus state powers? Over 600,000 people died in the Civil War disputing that question. Nobody's minds were changed. The debate has raged on unabated ever since.

Yes, there are limits to federal powers; and every once in a while, federal courts, and even the SCOTUS, will smack Congress down for exceeding them, on the grounds that the Constitution has not expressly granted such (certain) powers to Congress, and thus those particular powers are reserved to the states.* But the bar is set higher now than prior to the turn of the 20th Century.


*(See, for example, United States v. Lopez (1995), where Congress enacted the Gun-Free School Zones Act of 1990 (GFSZA) prohibiting the possession of firearms in school zones. Lopez brought a loaded handgun to school and was charged under the Act. The Supreme Court held that the commerce power only grants Congress the ability to regulate the use of the channels and instrumentalities of interstate commerce, and other activities having a substantial relation to or a substantial effect on interstate commerce. The Act was held to unconstitutional for exceeding the power of Congress under the Commerce Clause.)

[Andy9o8 2]

Quote

I'll be curious to see LawRockets's take on this.

Yeah, well, I drank too much coffee today, so I'm still up.

[popsjumper 2]

Reality is both 1 AND 2.

Our current U.S. g'ment seems to think, and act, as if only #3 applies.

My reality and yours are quite different.
I think we're all Bozos on this bus.
Falcon5232, SCS8170, SCSA353, POPS9398, DS239

[popsjumper 2]

"But it's unclear whether the new law will remain a symbolic declaration of states' and Second Amendment rights, or spark a real-life confrontation between state and federal officials."

Is this the start of Civil War Between the States II?

Now it's States Right with respect to guns instead of slavery?

My reality and yours are quite different.
I think we're all Bozos on this bus.
Falcon5232, SCS8170, SCSA353, POPS9398, DS239

[bodypilot90 0]

Here is one ruling that helped stop FDR and would apply to obamacare.

Quote

Chief Justice Hughes wrote for a unanimous Court in invalidating the industrial "codes of fair competition" which the NIRA enabled the President to issue. The Court held that the codes violated the constitutional separation of powers as an impermissible delegation of legislative power to the executive branch. The Court also held that the NIRA provisions were in excess of congressional power under the Commerce Clause.

The Court distinguished between direct effects on interstate commerce, which Congress could lawfully regulate, and indirect, which were purely matters of state law. Though the raising and sale of poultry was an interstate industry, the Court found that the "stream of interstate commerce" had stopped in this case—Schechter's slaughterhouses bought chickens almost exclusively from intrastate wholesalers and sold completely exclusively to intrastate buyers. Any interstate effect of Schechter was indirect, and therefore beyond federal reach.

Though many considered the NIRA a "dead statute" at this point in the New Deal scheme, the Court used its invalidation as an opportunity to affirm constitutional limits on congressional power, for fear that it could otherwise reach virtually anything that could be said to "affect" interstate commerce and intrude on many areas of legitimate state power.

Justice Cardozo's concurring opinion clarified that a spectrum approach to direct and indirect effects is preferable to a strict dichotomy. Cardozo felt that in this case, Schechter was simply too small a player to be relevant to interstate commerce.

http://en.wikipedia.org/wiki/Schechter_Poultry_Corp._v._United_States***

[Kennedy 0]

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*(See, for example, United States v. Lopez (1995), where Congress enacted the Gun-Free School Zones Act of 1990 (GFSZA) prohibiting the possession of firearms in school zones. Lopez brought a loaded handgun to school and was charged under the Act. The Supreme Court held that the commerce power only grants Congress the ability to regulate the use of the channels and instrumentalities of interstate commerce, and other activities having a substantial relation to or a substantial effect on interstate commerce. The Act was held to unconstitutional for exceeding the power of Congress under the Commerce Clause.)

Yeah, and then congress passed the exact same law all over again, but changed it from 1990 to 1995 and added a provision [url "http://gunowners.org/fs9611.htm"]that the gun "affects interstate and foreign commerce."[/URL]

Therein lies my concerns, and what prompted this thread. Congress defines what "affects interstate and foreign commerce" so broadly that anything and everything is covered, and so they can legislate anything and everything

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
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[Andy9o8 2]

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Congress defines what "affects interstate and foreign commerce" so broadly that anything and everything is covered, and so they can legislate anything and everything

FWIW, and I haven't read the text of the statute to which you refer yet (do you have a link to its text?), just as the Wyoming Legislature has no jurisdiction to declare, with force of law, what complies with Federal law, Congress has no jurisdiction to declare, with force of law, what complies with the US Constitution - including the interstate commerce clause. Only the Federal courts have jurisdiction to do that.

In other words, if Congress were to pass some law which recites "It is hereby declared that XYZ affects interstate commerce", and that law were challenged in Federal court, the Federal court might very well rule "No, XYZ does not affect interstate commerce, and Congress over-stepped its bounds in 'declaring' that it does."

[Kennedy 0]

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This "affects commerce" language is so broad that, in one case, a farmer was held to have "affected commerce" by growing and wholly consuming his own crops, on the basis that commerce would be altered if every farmer did the same. Obviously, given this interpretation, there would be no human activity that did not "affect commerce," and the change would have absolutely no impact on the implementation of the unconstitutional 1990 law.

You're right, they never defined it by legislation, but it is how it's interpretted by congress and the various enforcement bodies that creates the problem (and of course the courts that go along wtih it).

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
1*