Commerce Clause CURRENT EVENTS Economy Intelwars minimum wage

Feds Have No Constitutional Authority to Impose Wage Controls

Talk of hiking the minimum wage at the national level has ramped up in recent weeks. With the Democrats controlling the House and the Senate, and Joe Biden in the White House, it seems increasingly likely that we’ll soon see a federal $15 per hour minimum.

In other words, it may soon be illegal to take a job that pays less than $15 an hour.

Of course, this is a horrible policy. Wages shouldn’t be “regulated.” You must suspend basic laws of economics to think otherwise. But even you think it’s a good idea to regulate wages, it’s not the federal government’s job.

In fact, the feds have no constitutional authority to impose wage controls.

Federal supremacists will quickly point to the commerce clause. But that constitutional argument for a federal minimum is as ignorant as the economic arguments.

When the Constitution was written and ratified, “commerce” did not mean “any and every economic activity.” Over time, the Supreme Court has applied that definition. In effect, politically connected lawyers on the federal payroll amended the Constitution to give the federal government power it was never intended to wield.

And today, as Justice Clarence Thomas pointed out in his dissent in the medical marijuana case Raich v. Gonzales, under the Court’s expansive definition of commerce-power, the federal government has “no meaningful limits.”

So, what did “commerce” mean in the founding era? Simply put, commerce pertained to trade – the act of exchanging goods. Commerce power also extended to regulation of the transportation system, shipping, and interstate and international waterways.

When researching his scholarly paper, The legal meaning of commerce in the Commerce Clause, Rob Natelson scoured 17th and 18th century case law, legal works and legal dictionaries, as well as lay usage of the word. His research showed commerce was almost exclusively used in connection with trade – not the broader range of economic activities the Supreme Court uses. Commerce included “buying and selling products made by others (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines.”

Natelson wrote:

“Commerce benefited agriculture and manufacture by circulating their products, but it did not include agriculture or manufacture. Jurists compared commerce to an enormous circulatory system, carrying articles throughout the entire Body Politic, as the blood in the human body carries oxygen and nourishment. Thus, like the American Founders, English lawyers and judges understood the tight interrelationship between commerce and other parts of the economy, yet they were careful to distinguish them conceptually.”

Commerce was never intended to give the federal government the power to regulate manufacturing, agriculture, labor laws, health care, or a host of other activities claimed by federal supremacists of all stripes.

When it comes to regulating “trade” across state lines, the commerce clause does give the federal government significant power, but the purpose for delegating that power was quite limited.

James Madison explained the intent of the commerce clause in a letter to J. C. Cabell dated February 13, 1825. He acknowledged that a broader delegation of power is implied by listing the power to regulate interstate commerce and foreign commerce together, but insisted that was not the intent.

“I always foresaw difficulties might be started in relation to the interstate commerce power…Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend to it all the qualities & incidental means belonging to the power over foreign commerce, as is unavoidable, according to the reasoning I see applied to the case.”

The bottom line is the federal government was never intended to micromanage the economy through wage laws, labor laws, agricultural regulations, industrial regulations, healthcare laws and the like. Those powers were left to the states and the people. When the federal government regulates the economy and it does not directly relate to trade, it is usurping power and violating the Constitution.

Simply put, Uncle Sam doesn’t have the authority to tell you that you can’t work for $14 an hour. This isn’t regulating commerce. It’s usurping power.

The post Feds Have No Constitutional Authority to Impose Wage Controls first appeared on Tenth Amendment Center.

Commerce Clause Court Cases Gibbons v Ogden Intelwars John Marshall Supreme Court

How One Landmark Case Shaped the Commerce Clause

In some ways, John Marshall’s opinion in Gibbons v. Ogden expanded federal power using expansive definitions of various words in the Commerce Clause. But future courts ignored an important limiting principle he included in his opinion.

The commerce clause operates both as a power delegated to Congress and a constraint upon state legislation. The clause found in Article I Sec. 8 empowers Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

No clause in the 1787 Constitution has been more disputed, and none has generated as many cases. To this day, the debate over the extent of the commerce power centers on the definitions of “to regulate,” “commerce,” and “among the several states.”

One such case that goes back to the earliest days of the Republic and remains foundational for modern Constitutional law is Gibbons v. Ogden (1824)

New York law gave Aaron Ogden a monopoly. Only his company could operate steamboats within New York waters. Another man, Thomas Gibbons, disregarded that law. He operated steamboats that traveled from New Jersey to New York.

Ogden sued to halt Gibbon’s steamboat business. He contended that New York law gave him a monopoly. Gibbons countered that New York law interfered with a federal law that licensed him to operate his ships. If Congress had the power to license ships that travel between one state and another, then the New York law would be preempted, and thus unconstitutional. The New York court’s rejected Gibbons Constitutional arguments and enjoined his operations. In turn, Gibbons appealed the case to the United States Supreme Court. He argued that the federal law was supported by Congress’ power under the Commerce Clause

Gibbons contended that a state cannot regulate interstate commerce.

In Gibbons v Ogden, the Supreme Court agreed. Chief Justice John Marshall provided the Court’s first major interpretation of the words “commerce” and “among” in the Commerce Clause.

Ogden argued that the New York monopoly law was constitutional because Congress lacked the power to regulate boats traveling between New York and New Jersey. Commerce he contended was limited to “traffic, to buying and selling, or the interchange of commodities and… it [did not] comprehend navigation.” Therefore the New York law should control.

As in McCulloch v Maryland, Chief Justice Marshall rejected the narrowest interpretation of Congressional power in favor of a broader one. He explained that Ogden’s construction would “restrict a general term,” that is commerce, which is “applicable to many objects, to one of its significations”- meaning trade or traffic. Instead, Marshall adopted a broader interpretation of the meaning of the word commerce. He concluded that “Commerce, undoubtedly, is traffic but it is something more: it is intercourse.  It describes the commercial intercourse between nations, and parts of nations in all its branches, and is regulated by prescribing rules for that intercourse.”

This conclusion is also supported by evidence that the original meaning of “commerce” included laws governing navigation.

As Rob Natelson noted in his paper “The legal meaning of commerce in the Commerce Clause,” “commerce” included “buying and selling products made by others (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines.” [emphasis added]

Next Marshall explained that the word “among” in the Commerce Clause is defined as “intermingled with.” Marshall wrote that “comprehensive as the word ‘among’ is, it may, very properly be restricted to that commerce which concerns more States than one.” The word “concerns” is another broadening term.

When the words of the Commerce Clause in the Constitution are replaced by synonyms used by Marshall (“commerce” with intercourse and “among” with intermingled with), the power seems to be broader- or so later courts would rule.

The narrowest definition of “to regulate” is to “make regular,” That is, to regulate the free flow of goods, but not, except in cases of danger, to prohibit the flow of any good. Some scholars and a number of Supreme Court Justices have supported that narrow definition. In fact, in 1886, the House Judiciary Committee declared that a proposed bill that would have prohibited the sale of oleomargarine was against the original intent of the Framers. The committee reasoned that the purpose of the Commerce Clause was to prevent state barriers to commerce, not to give Congress the power to do the same.

Nonetheless, the Supreme Court has never formally accepted a limited view of what “to regulate” means. From the outset, in Gibbons v Ogden, Chief Justice John Marshall saw the power to regulate as coextensive with the other delegated powers of Congress. He declared: “This power, like all others vested in Congress, is complete in itself may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.”

In other words “to regulate” is descriptive of the essential and core Congressional power to legislate. The manner in which Congress decides to regulate commerce, Marshall said, is completely at the discretion of Congress.”

However, like in McCulloch v Maryland, Marshall placed an important limiting principle on the scope of Congress’ powers. The Commerce Clause enumerated three specific powers: to regulate commerce with foreign nations, among the several states, and with Indian tribes. Therefore, that “enumeration presupposes something not enumerated.” In other words, Congress can’t regulate any other type of commerce than the three that are listed. Specifically, Marshall found that the Constitution does not give Congress the power to regulate the “exclusively internal commerce of a state.” Such “exclusively internal commerce” he added “may be considered as reserved for the state itself.”

The text of the Tenth Amendment supports Marshall’s conclusion. It provides that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” If an enumerated power is not delegated to Congress, then it is reserved to the states.

With this broad reading of “commerce” and “among” the court found that Congress had the power to enact the federal law that licensed Gibbons’ boats. As a result the state law that limited boats from entering New York waters was preempted, and was unconstitutional.

Like in McCulloch v Maryland, Marshall can be accused of casually employing expansive and comparatively imprecise rhetoric concerning the scope of Congress’ enumerated powers. Yet, once again, Marshall in fact reaffirmed limits on these powers.  Future decisions would rely on Marshall’s broad definition of “commerce” and “among,” yet ignore his limitations on federal power.

Commerce Clause Court Cases Intelwars necessary and proper clause NLRB v Jones and Laughlin Steel Corp Supreme Court United States v. Darby Wickard v Filburn

Three Supreme Court Cases that Twisted the Commerce Clause

Despite the words that make up the commerce clause and necessary and proper clause remaining constant over the past two centuries, the Supreme Court’s interpretation of their meaning and reach has not. Over the years, the SCOTUS has used the clause to vastly expand federal power.

The commerce clause delegates to Congress the power to regulate interstate commerce. As originally understood, the power was rather limited. At the time of the drafting of the Constitution, commerce was understood top pertain to trade, or the act of exchanging goods. Commerce power also extended to regulation of the transportation system, shipping, and interstate and international waterways. But the Commerce Clause was never intended to give the federal government the power to regulate manufacturing, agriculture, labor laws, health care, or a host of other activities claimed by progressives.

However, the Supreme Court has erroneously found that the commerce clause, working in conjunction with the necessary and proper clause, allows Congress to regulate certain types of intrastate activity. For example, Congress cannot regulate activity that is not “among” one state and another.

Throughout the twentieth century, the Supreme Court adopted different tests to determine what kinds of intrastate commerce Congress can regulate. During the progressive era, the court used to so-called direct-effects test. In E.C. Knight (1895) Hammer v. Dagenhart (1918) and Schecter Poultry (1935), the court held that Congress could only regulate commerce that had a direct effect on interstate commerce.

However, in 1937, the new deal Court replaced the direct-effect test with the new substantial-effects test. In three cases the Court held that Congress could regulate activity that had a substantial effect on interstate commerce — NLRB v Jones & Laughlin Steel Corp. (1937), United States v Darby (1941) and Wickard v Filburn (1942). These cases are still considered “good law.”

NLRB v Jones and Laughlin Steel Corp (1937)

In 1935, FDR signed into law the National Labor Relations Act (NLRA). This statute gave the National Labor Relations Board (NLRB) the power to punish “unfair labor practices affecting commerce.”

The Jones and Laughlin Steel Corporation argued that the NLRA was “an attempt to regulate all industry, thus invading the reserved powers of the States over their local concerns.” On this question the court split 5-4. Chief Justice Hughes wrote the majority opinion. He acknowledged that the federal government could not regulate “all labor relations,” but only what may be deemed to burden or obstruct commerce.” This test allowed Congress to protect interstate commerce from burdens and obstructions. Hughes held that Congress may “Regulate all local activity that has such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions.”

However, he qualified this holding with a limiting principle.

“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 embrace effects upon interstate commerce so direct and remote that to embrace them in view of our complex society would essentially obliterate the distinction between what is national and what is local and create a completely centralized government.” He added “The question is necessarily one of degree.”

The majority did not reject the distinction between direct and indirect effects. Rather the court found that Congress could prohibit local actives that “burden or obstruct,” that is, have a direct effect, on interstate commerce.

United States v Darby (1941)

In this case, the SCOTUS unanimously held that Congress is allowed to regulate the wages of local lumber workers. Darby rejected the direct effects test and introduced the substantial effects test. This framework recognized that Congress can do more than simply protect interstate commerce from being burdened or obstructed. It could also regulate intrastate activities that’ merely had a substantial effect on interstate commerce. The Court’s analysis, written by Justice Stone relied on the ruling in McCulloch v Maryland (1819)

By citing McCulloch the court indicated the substantial effects test was based on the Necessary and Proper Clause. Darby did not expand the meaning of the word “commerce” in the commerce clause. Rather, under the substantial-effects test, Congress could now regulate local activities – even if those were not commerce- if the law was a “necessary and proper” means to regulate interstate commerce.

Though Darby cited McCulloch, the New Deal Court did not follow Chief Justice Marshall’s reasoning. Justice Stone stated that it did not matter whether Congress was in fact motivated by a desire to regulate local activities.

“Whatever the motive and purpose,” he wrote “regulations on commerce which do not infringe on some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.” Compare that with the limiting principle in McCulloch v Maryland (1819) Where Chief Justice Marshall maintained that the court had a duty to declare unconstitutional a law “under the pretext of executing its powers, to pass laws for the accomplishments of objects not entrusted to the government.”

Finally, the Court held that the Tenth Amendment “states but a truism that all is retained which has not been surrendered.” As a result, the court would no longer consider whether Congress’ implied powers under the necessary and proper clause would intrude on a State’s police power. Darby, accordingly, overruled Hammer v Dagenhart (1918)

Wickard v Filburn (1942)

The third case was Wickard v Filburn. The Agricultural Adjustment Act restricted the amount of wheat that farmer Roscoe Filburn could grow to a specified quota. Secretary of Agriculture, Claude Wickard administered this regulatory scheme. The law restricted the supply of wheat as a means to increase prices, thereby benefiting farmers. According to the record, Filburn used the bulk of the wheat he grew in excess of this quota on his farm to feed his livestock. This way, Filburn could use his own home-grown wheat to feed his livestock at a lower cost, and still benefit by selling his “quota” on the market for the higher price.

The justices considered this case so controversial they asked the parties to re-argue it. While deliberating over the decision, Justice Jackson initially favored an opinion that would have abandoned all scrutiny concerning the scope of Congress’ commerce power. In other words, the court would uphold any economic regulation that Congress deemed reasonable. But even the New Deal Court was not willing to take such a momentous step. Instead, Jackson’s majority opinion expanded the substantial-effects test. The court acknowledged that Filburn’s small amount of locally consumed wheat did not have a substantial effect on interstate commerce. Yet, when all the locally grown wheat nationwide is considered all-together, in the aggregate, those intrastate activities have a substantial effect on interstate commerce. Thus Congress can regulate the locally consumed wheat. This doctrine became known as the aggregation principle.

The court considered evidence that home-grown wheat used to feed livestock affected national wheat prices even though Filburn’s “Own contribution to the supply of wheat may be trivial by itself.” The Court found this fact was not enough to remove him from the scope of federal regulation where, as here, his contribution taken together with that of many other similarly situated “is far from trivial.”

Darby introduced the substantial-effects test, Wickard added the aggregation principle.

It is a myth that the Court in Wickard was concerned with the home-grown wheat that Filburn and his family consumed at the dinner table. “The total amount of wheat, consumed as food varies but relatively little,” the Court said. In contrast, the wheat that farmers like Filburn grew to feed their livestock, which they would then send to the market “constitutes the most variable factor in the disappearance of the wheat crop.” The Court found that this latter activity -in the aggregate- had a substantial effect on the interstate price of wheat. The locally consumed wheat, therefore, had a substantial effect on the interstate price of wheat. The locally consumed wheat thereby undercut the Agricultural Adjustments Act’s plan to maintain higher interstate wheat prices.

This final distinction between family consumed and livestock consumed wheat may seem trivial in its foolishness. But in the aggregate, make Wickard one of the most substantially foolish opinions in the history of the judicial branch.

Nearly six decades would pass before the Rehnquist Court provided a limiting principle for the substantial effects test doctrine that expanded Congress’ power under the substantial-effects test. This came in US v Lopez (1995) with an outer limit that the substantial-effect being regulated is fundamentally economic in nature. As well as adding the so-called “Jurisdictional hook” that had to demonstrate intrastate regulations on commerce regulated items that had traveled in interstate commerce at some point.

Commerce Clause Constitution Intelwars

Read the Commerce Clause in the Light cast by the other Parts of our Constitution

The parts of our federal Constitution are so interrelated that it is impossible to understand a single clause therein without considering all of the other provisions of our Constitution.

Article I, §8, clause 3, US Constitution, states:

“The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

The original intent of the power to regulate commerce “among the several States” is proved here: Does the “interstate commerce” clause authorize Congress to force us to buy health insurance? That paper proves that the primary purpose of the power is to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling.

But recently, some have asserted that since “foreign Nations”, “the several States”, and “the Indian Tribes” are grouped together in the same clause, it necessarily follows that Congress’ power to “regulate commerce” with each of them is identical. And since Congress has broad powers over foreign commerce, they conclude that Congress has those same broad powers over interstate commerce, and may lawfully, for example, ban the movement of physical goods [such as firearms] across state lines.

So let’s look at that clause in the Light cast by the rest of the Constitution.

Three totally different and separate entities

Three entities are listed in the same clause at Art. I, §8, cl. 3; but we may not properly conclude that the extent and nature of the regulation permitted over the three entities is the same. That’s because each entity has a distinctly different status, and is treated accordingly in the Constitution.

The several States

The States are the sovereign entities which created the federal government when they ratified the Constitution. At Art. I, §10, the States agreed that they would not individually exercise the power to make commercial and trade treaties with foreign Nations; but would exercise that power collectively by delegating to the “creature” of the Constitution – the national government – the power to make such Treaties (Art. II, §2, cl. 2).

The States have a high status: They are The Members of the Federation the States created when they ratified our Constitution. The federal government is merely the “creature” of the constitutional compact the States made with each other when they ratified the Constitution, and is completely subject to its terms.

Foreign Nations

Various provisions are relevant to the power the States delegated to Congress respecting commerce with foreign Nations:

? Pursuant to its treaty making power granted at Art. II, §2, cl. 2, the United States may make treaties with foreign nations addressing a great many commercial and trade matters, territorial and fishing waters [our ships won’t fish within X miles of your shoreline, etc.], inspections of products, mutual assistance to merchant ships in distress at sea, assistance to each Party’s sick merchant seamen, etc.

? Art. I, §8, cl. 1, grants to Congress the power to levy “Duties, Imposts [tariffs on imports] and Excises”. As they did with the infamous Tariff Act of 1828, Congress has the power to shut down imports from foreign Nations by imposing exorbitant tariffs.

? Art. I, §8, cl. 10, grants to Congress power to define Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations. Congress may ban or restrict commerce with foreign nations who fail to rein in their countrymen who are operating pirate ships or violate the Law of Nations.

? Art. I, §8, cl. 11, grants to Congress the power to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. Congress may restrict or ban commerce with warring foreign nations and their allies, and make rules about seizing their cargo (“bounty”).

? Imports and exports are unloaded and loaded at dockyards over which the federal government has (pursuant to Art. I, §8, next to last clause) exclusive legislative authority. Congress may make whatever inspection laws need to be made to protect us from contaminated imports – such as agricultural products infested with bugs or diseases, other contaminated products, etc. 1

So Congress’ power to “regulate commerce with foreign Nations” is exercised by means of Treaties the United States makes with foreign Nations, and by means of Laws made by Congress. In the course of exercising this delegated power, the Legislative and Executive Branches have broad authority to restrict or ban commerce with foreign Nations, and determine its parameters.

Congress has no such powers over the Member States.2

Indian Tribes

In Federalist No. 24 (10th & 11th paras), Hamilton speaks of the necessity of keeping small garrisons on our Western frontier which are necessary to protect “against the ravages and depredations of the Indians”; and that some of these posts (garrisons) “will be keys to the trade with the Indian nations.”

In Federalist No. 42 (11th para), Madison speaks of the unsettled status of Indians and says this has been a question of frequent perplexity and contention in the federal councils.

So! It is a clear misconstruction of Art. I, §8, cl. 3 to assert that Congress has the same power to regulate commerce between the Member States that it does to regulate commerce with foreign Nations and the Indian Tribes.

James Madison’s letter of February 13, 1829 to J.C. Cabell

In Madison’s letter of February 13, 1829 to J.C. Cabell, he warns that the claim that the power to regulate commerce with the three entities is identical, is superficially plausible, but actually wrong.

He then says, as to the power to “regulate Commerce among the States”:

“… it is very certain that it grew out of the abuse* of the power by the importing States, in taxing the non-importing; and was intended as a negative & preventive provision agst. injustice among the States themselves; rather than as a power to be used for the positive purposes of the General Govt. in which alone however the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend to it all the qualities & incidental means belonging to the power over foreign commerce…” [italics added]

*see the Federalist No 42.”

So Madison warns that we better stick with the original understanding; and not interpret the clause to mean that the federal government has the same broad power over interstate commerce that it has over commerce with the foreign Nations and with the Indian Tribes.


1 The fed gov’t can’t lawfully ban imports of guns and arms because the 2nd Amendment prohibits the fed gov’t from infringing our right to keep and bear arms. Furthermore, a disarmed citizenry is inconsistent with Congress’ obligation, imposed by Art. I, §8, cls 15 & 16, to provide for the arming and training of the Militia of the several States. To see what it was like when we elected to Congress people who knew and obeyed our Constitution, read the Militia Act of 1792. But until We The People learn our Constitution, we will continue to elect ignoramuses to Congress. We cannot be ignorant and free – and you can’t see that a candidate is ignorant unless you are knowledgeable.

2 Domestically, Congress has the power to impose excise taxes on specific articles in commerce. For a discussion of “imposts”, “excises” and the Whiskey Rebellion, see The Plot to Impose a National Sales Tax or Value Added Tax.

Commerce Clause CURRENT EVENTS Donald Trump Intelwars tobacco

Where were all the Constitution’s defenders when the feds raised the smoking age?

On December 20, President Trump signed legislation purporting to impose a single national age of 21 for selling tobacco products.

Obviously, the measure reduces the freedom of millions of Americans who are legally adults in almost every other respect—including (correctly or not) the right to vote. Moreover, setting minimum consumption ages is not a power the Constitution grants the federal government. The Constitution reserves it to the states.

The issue here, of course, is not whether tobacco products are safe. They clearly are not. The issue here is whether our Constitution and the freedoms it protects are safe. As this episode demonstrates, they clearly are not.

Regulating local sale and consumer use of products is an exercise of what lawyers call the “police power.” This phase does not refer to your local police officers; it is an older use of “police” to mean “policy.” The police power is authority to adopt regulations to protect public health, safety, morals, and the general welfare. Under the Constitution, the states retain broad police power, with constitutionally-imposed exceptions.

By contrast, the Constitution grants the federal government only certain enumerated (listed) powers, including police power within Washington, D.C. and other federal enclaves and the federal territory. Outside those areas—as the Supreme Court has reiterated—the federal government has no general police power.

This is why when advocates of Prohibition sought to ban alcohol use, they did so by constitutional amendment.

Those who benefit from centralized power are always touting some problem for which the “solution” is ever more centralized power, and they don’t care much about constitutional limits. In 1984 their “solution” was to impose a national drinking age of 21. However, in 1984 (unlike now), federal politicians recognized that they couldn’t do this by decree. Instead Congress adopted legislation making a relatively small portion of federal highway funds contingent on states raising their own drinking ages. The Supreme Court later upheld this approach.

To those who understand the Constitution, this was a dubious use of federal spending authority. But at least it showed that politicians retained a shred of respect for constitutional limits. That shred has now vanished. Republicans and Democrats, the president and his fiercest opponents—nearly all are complicit in this latest action.

When supporters of unbridled federal economic intervention consider the Constitution at all, they cite the power the Constitution grants Congress “to regulate Commerce . . .  among the several States.” Founding-era definitions make it arguable whether a retail sale is “Commerce” as the Constitution uses the word. (To the founding generation commerce was usually transactions among merchants.) But if it is commerce, then it is local rather than interstate.

It is true that the Constitution provides that Congress may adopt laws “necessary and proper” to carry out its powers. But as the Constitution’s advocates repeatedly pointed out during the debates over whether to ratify the document, the Necessary and Proper Clause merely explains rather than extends congressional authority. It clarifies that while regulating interstate commerce Congress may govern incidental activities, such as packaging and inspection of goods sent from state to state.

For example under the Constitution, Congress may require warning labels on products that cross state lines, just as states have authority to regulate, label, or even ban tobacco within their boundaries. But Congress has no power to impose a single national age for local consumption.

Several aspects of this episode are worth noting.  First, violating the Constitution to satisfy popular demand is bad, but this was worse: The new law was merely the result of bureaucratic and lobbyist pressure. For years the Food and Drug Administration has wanted to expand its empire to include tobacco. During the Obama administration the FDA got its wish. This law ratifies FDA’s overreach.

Second, Big Tobacco—foolishly thinking they could appease their enemies—supported the change. This is a textbook case of how bureaucrats and special interests team up to restrict the freedom and constitutional rights of others.

Finally: The proverbial dog did not bark. In recent years, we have heard a great deal of political posturing about how we need to defend the Constitution. Leftists wrap themselves in the Constitution to promote impeachment, weaken our borders, and impose their social agendas. Conservative politicians and the president trumpet the need to retract federal power to constitutional limits. Yet in the end, the posturing of politicians amounted to nothing. Almost all crowded meekly onto the latest bureaucratic bandwagon.

This article first appeared in