07/06/2012 05:03 pm ET | Updated Sep 05, 2012

Limited Government v. National Competence: The Ongoing Struggle Over the Commerce Clause

The framing of Congress's constitutional law-making powers -- so profoundly at issue in NFIB v. Sibelius, the "Obamacare case" -- reflects two contending principles that will never be drawn into any final, definitive balance.

One principle, the basis of the conservatives' unhappiness with the Affordable Care Act, is that the federal government is to be a government of limited powers. Unlike state legislatures, Congress is not presumed to have plenary authority to regulate for the health, welfare, and morals of all who reside within its jurisdiction. Let's call this the "limited government" principle.

On the other hand, the Commerce Clause was intended by the Philadelphia Convention to help implement a general resolution that the framers adopted in favor of empowering Congress "to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation."

In other words, the federal government -- although of limited powers -- was intended to have the capacity to address problems that are national in scope or beyond the capacity of individual states to resolve for the benefit of the entire nation. Let's call this the "national competence" principle.

Before the advent of the steam engine, the telegraph, the intercontinental railroad, and air travel, it might have been easy to imagine that these two principles could co-exist more or less happily. The social, economic and political life of most late 18th century Americans was overwhelming local. What happened in "Rhode Island and Providence Plantations" stayed in... well, you get the picture.

By the last third of the 19th century, if not earlier, that vision of American economic and social life could hardly be sustained. A coal strike in Pennsylvania could affect railroad shipments in the West. Tainted meat butchered in Chicago could wreak havoc with restaurant patrons in New Orleans. The end of slavery in the South could drive up the price of clothing in the North.

It was becoming increasingly clear that local practices and behaviors, perhaps not even economic, could have significant impacts on the robustness of interstate commerce. They could surely determine whether the instrumentalities of interstate commerce were being used to advance or injure the public welfare.

How did the Supreme Court respond? In many cases, implicitly following the "national competence" principle, the Court acceded to Congress's increasing regulatory ambitions. In others, various combinations of Justices began trotting out new doctrinal methods for shoring up the "limited government" principle.

One way was to hold unconstitutional certain federal laws that regulated labor, manufacturing, mining, or agriculture, on the literalist ground that these entailed "production," and not "commerce."

Another was to invalidate certain regulations of interstate commerce if the Court deemed their purpose to be something other than genuinely interstate and commercial -- if Congress's "real" interest, for example, supposedly lay in promoting morality, not the GDP.

A third -- and the most enduring -- technique has been to try to articulate some formal rule outside the constitutional text by which permissible and impermissible extensions of the commerce power could be distinguished. The Court's recent regulation of action versus inaction distinction is the latest in a line of cases that have tried to distinguish "direct" from "indirect" impacts on commerce, impacts on Congress that are "substantial" from impacts that are too insignificant, or activities that are "economic" in nature from those that are "noneconomic."

History has shown, for better or worse, however, that these techniques of limitation are more or less hopeless.

They are hopeless, first of all, because the mechanical application of the limited government-based rules produces real-world outcomes that seem utterly perverse. For example, the Court once held it unconstitutional to apply antitrust law to prevent a monopoly in sugar refining, but, later, not to prohibit price fixing in the sale of meat. If, however, Congress is empowered to advance interstate commerce by preventing anticompetitive behavior from hurting consumers, then there is no sensible reason to decide these cases differently.

The techniques are hopeless, second of all, because many so-called judicial "tests" are so obviously malleable that they don't seem to drive the Court's results. It is sometimes too easy, that is, to see the Court's desired bottom-line outcome dictating the application of its "test," rather than the test producing the outcome. Thus, when Congress prohibited the shipment in interstate commerce of goods made through child labor, the Act was held invalid because Congress's supposed real aim was to standardize labor conditions, a supposed job of the states. But when Congress prohibited the interstate shipment of lottery tickets, the Court was untroubled by the thought that its likely real aim was to suppress gambling, also a job for the states.

In my judgment, the Commerce Clause view of five Justices in NFIB v. Sibelius is likewise easier to see as a result looking for a test than a test that yields a result.

Finally, the formal tests are hopeless because, if taken to their logical limit, they could disable Congress from addressing problems whose neglect the public will not tolerate. Libertarians may hope that the Roberts Court's Commerce Clause vigilance will produce rollbacks in what Congress has long required when it comes to civil rights, environmental protection, and even public health and safety. Given public sentiment, however, such cutbacks are unlikely.

My own prediction is that, even if the Roberts Court persists in narrowing the scope for federal legislative authority, its exercises in creating new formal tests will not overcome in the long run the exigencies of a national economic and social life in which geographic boundaries are largely irrelevant.

For example, I have little doubt that the Court's current narrow view of the Commerce Clause prohibits the direct imposition of a national math and science curriculum; if we find ourselves trounced in global economic competition by nations whose local school boards are not squabbling about the truth of evolution, however, the doctrine will eventually change.

In sum, I believe that, unless time begins running in reverse, it is too late for the value of limited government to triumph as a judicially enforced legal principle over what the public -- or, more specifically, an assembly of its representatives -- determines is an imperative for national action. What limits government ultimately is our collective inclination to discern such imperatives cautiously. It is national good sense, not constitutional parsing that spares us from equivalents to compulsory broccoli. (And I like broccoli.)