The Commerce Clause and the Supreme Court
by Anthony Stasi
Jul 06, 2010 | 2717 views | 0 0 comments | 35 35 recommendations | email to a friend | print
When Senator Al Franken (man does that sound weird) questioned Supreme Court nominee Elena Kagan last week, he referred to the Carolene Products v. United States case of 1938. His concern was whether Kagan felt the court still has reason to expand on the interstate commerce clause as a means to strengthen the federal government. For Franken, his concern was about broadcasting rights, but the case was the perfect one for Franken to reference.

The Carolene Products case was about whether the federal government could regulate the way milk was sold. The Carolene company was selling filled milk, meaning that they skimmed off and sold the fat, and then replaced the fat with oil – which was called filled milk back when people ate just about anything.

Up until Carolene, most of Roosevelt’s New Deal regulations were deemed unconstitutional. After Justice Owen Roberts changed his opinion in Carolene, the door was now open for an activist federal government. Franken was hoping that Kagan would jump on board in support of that style of interpretation– and she just might.

But in recent years, the Rehnquist-led court started to re-evaluate what is and is not interstate commerce. If a case does not involve interstate commerce, it is not under the federal government’s jurisdiction to regulate. Any issue – gun control, civil rights, you name it – needs to be interstate commerce. The court stretched to make filled milk an issue of interstate commerce in 1938, probably due to political pressure.

The court later decided in Lopez v. United States that Gun Free School Zones, while important, were not a matter of interstate commerce – and this was the first break from the Carolene Products case. Why do we care about this? The latest Supreme Court ruling on gun ownership in District of Columbia v. Heller, tells us that the Roberts-led court is looking at interstate commerce in a more direct and focused way. This separates from years of court rulings that have been based on a wider recognition of the clause.

Kagan will take the expansive view of the clause, so Franken can rest easy. But one thing is certain: the political pressure on the court is not what it was when FDR was threatening to expand and change the court due to its limitations on federal expansion.

The Tough Choices in Sacramento

Governor Arnold Schwarzenegger recently won a court order to reduce state employee salaries. Government workers are hard working and they get little pay to begin with, but California is in the unique position of toppling over economically without drastic measures.

This is something that states need to avoid before they get to this point. Perhaps Schwarzenegger can do this because he is leaving office soon and does not have to answer to an electorate, but these are tough decisions and Arnold is trying to save the state. There may be other approaches to this problem, and cutting salaries to valuable employees is not a popular move, but it beats laying people off and losing them entirely. This is why getting New York’s budgetary house in order matters so much. We do not want to be in this position.

On Your Mark, Get Set…(/b>

Former City Comptroller Bill Thompson is eying a run for mayor again in 2013. Current Comptroller John Liu also wants to be mayor, and you cannot leave Congressman Anthony Weiner out of a conversation about a mayoral race. What is there on the GOP side, however?

A GOP candidate for mayor needs to build a coalition way ahead of time, and perhaps we will see Dan Halloran on that list. Let us remember, however, how hard it is to get elected mayor of New York City without being a Manhattanite. You have to go all the way back to Abe Beame to find someone from an outer-borough, and even Beame didn’t live in Queens prior to becoming mayor.

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