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A new Interstate Commerce Clause

For any who have been reading my diary, you have seen that I have been suggesting some potential amendments to the Constitution. This entry is in that vein. To those who are of the persuasion “State sponsored amendments can never happen,” my final entry in this series will address that specifically. However right now I want to address the Interstate Commerce Clause:
Article 1 Section 8 paragraph 3:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

This is one of the enumerated powers of Congress. The Supreme Court (along with Congress) has interpreted this ability to regulate commerce among the several States as the ability to regulate any and every action that has an economic impact.  This single clause has been interpreted to mean “oh by the way, in addition to what we have said the Congress can do, they can also do whatever else they want,” which changes the list of enumerated power to a for instance.  Article 2 section 8 would then read, “Congress can do whatever they want, for instance they may…” There was a small limit found recently in that inaction cannot be regulated, although inaction can be taxed.  Such a small exemption leaves little space for “the little people” to live.  The power to regulate wheat grown to feed a farmer’s own cattle is clearly not what the Constitution is discussing in the commerce clause, and we need to return to a system where only actual interstate commerce is considered interstate commerce.

In order to return to limited government the power to tax needs to be restrained (previous post) along with the power to regulate.  A new amendment is needed that specifies:

Clause 1) “The power to regulate interstate commerce is limited to the direct physical movement of goods across state borders.  Congress shall have the ability to regulate the transfer of such goods along with either the last transaction before transportation or the first transaction after transportation, but not both.

Clause 2) Additionally Congress has the power to regulate the transfer of materials into any state in violation of state law at that state’s petition or any transfer of materials in excess of predetermined limits determined by Congress onto Federally owned land.  These include both intentional and unintentional transfers.  The authority to determine limits may not be delegated.”

The first part limits what transaction Congress can regulate.  They cannot regulate wheat that is not sold across state lines, and if they regulate transfer of dairy then they cannot regulate the entire dairy industry, only the sale leading to the movement, or the first sale afterwards.  That is, if I call a shipper in New Hampshire and ask for a load of wood Congress can regulate that sale.  If I own a lumber mill in New Hampshire and I send my wood into New Jersey for sale then Congress can regulate that first sale after shipping.  If I buy the lumber, bring it into my state and then sell it Congress must pick one and only one transaction to regulate (either my purchase or my sale).

The second clause is written specifically for pollution.  If Montana decides to allow copper mining then Montana gets to decide the pollution rules within their own borders.  However, if Montana leaches cyanide into Yellowstone or Colorado through waterways then the Federal government has the authority to step in.  This is because Montana does not have the authority to determine the pollution limits in areas outside their control.  However the Federal government should not be able to target industries by setting arbitrary standards on the fly and the EPA shouldn’t get to go around and decide to regulate CO2 without Congressional approval.

Also note that electronic or optical signals are not physical goods.  Therefore Congress would be unable to regulate the transfer of these sorts of signals (i.e. telephone, internet, TV, electricity) either across or within state boundaries through the commerce clause.

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