Monday, October 26, 2009

The Unconstitutional Congress

Lost amidst the headlines about healthcare, Afghanistan, the Administration's war on Fox News, etc., I found the following article in today's Washington Times:

Rental industry hopes to buy influence on Hill

The first two paragraphs read;

For more than a decade, the rent-to-own industry has watched as 20 separate pieces of federal legislation it supported failed in Congress. After years of frustration, it decided to assert itself more aggressively.

Already a major political donor, the $6.3 billion-a-year industry paid lobbyists to "put a human face" on its case and looked for new ways to sow good will with key Democratic lawmakers, who were wary of an industry that rents equipment such as televisions, appliances, computers, furniture and refrigerators to people -- often low-income consumers -- with the option to buy them later.
There is no need to read any further for our purposes, because these two paragraphs are just enough to produce the typical and predictable reaction:

"Those damned lobbyists are trying to buy off Congress again."

While I don’t disagree with the sentiment, it misses a broader and more fundamental question: What kind of laws is Congress attempting to enact which would cause legions of lobbyists to descend on Capitol Hill to ensure their interests are represented? Particularly in this example of lobbyists from the rental industry, why should Congress even be bothering with such matters? Is it any of their business?

I did some checking in Article I of the Constitution, which deals specifically with the Legislative Branch. In particular, Section 8 of Article I enumerates the specific “Powers of Congress”. I read through it a couple of times looking in vain for a clause that would make it Congress’ business to regulate the rental industry. Lest anyone think I am being less than truthful or am not reading carefully enough, please click on the hyperlink above and examine Section 8 for yourself.

Does anyone see something that I missed? The only thing that comes close enough for Congress to hang its hat on is the third item under Section 8:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

This is commonly known as the “Interstate Commerce Clause: and it is indeed Congress’ favorite loophole. Congress invokes this clause to regulate any economic activity whether it involves interstate commerce or not. They simply assume that all economic activity (or even the lack of economic activity) potentially involves or affects interstate commerce and voilà, it suddenly becomes their business.

The reason the founders inserted the interstate commerce clause in Article I, Section 8 was to ensure uniformity and to keep state governments from interfering with interstate commerce. It was not meant as a license for Congress to regulate any and every aspect of our lives, as in dictating rules governing the rental industry or, for example, telling us how we may and may not spend our money on healthcare.

And speaking of the healthcare debate, there is one thing Congress can and should do constitutionally in this regard, and it would be in specific fulfillment of the intent of the interstate commerce clause. They could pass a federal law effectively overruling current state laws that prohibit insurance companies from competing across state lines. Such a law would expand consumer choice and would lower healthcare costs based on good, old-fashioned competition.

But nothing like that will ever come out of this Congress, because it is not as much fun as trying to run everybody’s life. It is also too constitutional.


JD Curtis said...

Leo, ever heard of Wickard v. Filburn when it comes to interstate commerce?

Leo B. Vadalà said...

Thanks. I wasn't familiar with the name and date of the specific case but I was generally aware of an idiotically reasoned Supreme Court decision involving agriculture, which was purely intrastate but nonetheless declared to be affecting interstate commerce, thus opening the floodgates to federal meddling. I guess this was the one I was thinking of. I see it happened in 1942, after Roosevelt had the opportunity to initimidate and pack the Supreme Court.

JD Curtis said...

Leo, have you read Liberal Fascism by Jonah Goldberg yet? Given what you blog about, I'm certain you would like it.

Leo B. Vadalà said...

No I haven't. I will have to add it to my reading list. Thanks!