Article 1, Section 8, Clause 18. The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Coupled with the power to regulate interstate commerce, this gives Congress quite broad powers.

There have been a multitude of Supreme Court cases that define this power broadly.

From Garcia v San Antonio Metropolitan Transit Authority(1985):

"Of course, we continue to recognize that the States occupy a special and specific position in our constitutional system and that the scope of Congress' authority under the Commerce Clause must reflect that position. But the principal and basic limit on the federal commerce power is that inherent in all congressional action—the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the States will not be promulgated."

The primary limitation on Congressional Power is to be found at the ballot box.


On what basis was the Great Society unconstitutional? One would think that we would have had these things struck down by now if they were.... its only been almost 50 years.

For reference, huge chunks of the First New Deal was found to be unconstitutional. It was only after FDR threatened to stack the Supreme Court that it went from 5-4 ruling the New Deal unconstitutional to 6-3 in favor of it (the Second New Deal) that the current interpretation of the all-powerful Commerce Clause came into effect. Now we are stuck with enough years of precedent on this matter that it is highly unlikely that the Supreme Court will reverse direction too much.

Tolstoy: As far as booze prohibition versus drug prohibition, I believe the key to understanding that is the treatment of the Commerce Clause prior to 1937 and post 1937. Prior to 1937, the Court had held much narrower opinions of federal regulatory power. Also, considering the massive amount of financial interest there was in brewing and the like, I believe the people in favor of Prohibition saw an amendment as the best way to ensure a law wouldn't be repealed in short order.

Its an interesting thought, and I'm going to do a bit more research into that.

TMW: Your statement about you not supporting Tolstoy's argument because you don't agree with it shows that you're just as "activist" in your own way. You have your opinions, and when the laws, Constitution and Courts agree, you're fine, but when they don't agree with you, you start off on the unconstitutional rant.

Just because you don't agree with something doesn't make it illegal. I have counter-protested at least five times against the Westboro Baptist fuckstains. But if it was required, I would defend their right in court to be able to protest. They've got a right to free speech just as I do, even if I find their message disgusting.

If Congress had tried to use the Commerce Clause to ban alcohol in the teens and twenties, the court would have struck it down under their narrow reading of the clause. But today the Constitution -- including the commerce clause -- is interpreted more consistently with John Marshall's view of the necessary and proper clause in McCulloch: if the ends are legitimate and the means not prohibited, a law is constitutional. As for the 10th amendment, the power to regulate interstate commerce IS one of the powers delegated to the federal government! This was one of the critical reasons the Constitution had to be written in the first place. The weak Articles of Confederation government lacked the power to intervene in commerce and the economy, and the country desperately needed a government that could. That power to regulate could certainly be read (and has been read) to allow Congress to ban drugs or alcohol, or to enact the New Deal and the Great Society.

But the key is it is "Interstate" commerce. Congress has no right to restrict commerce within a state which is why many states are fighting back and telling congress they have no right to interevene in stuff like gun sales within a state where the gun was manufactured in that state as well. The same argument could be made (and could have been made) with regards to any prohibition. The only reason the feds could go after the Prohibition-era Capones is that they imported their booze. Had it been made in Illinois and stayed in Illinois, there would have been no violation of Federal law as Congress could not have constitutionally banned all alcohol if the states decided to fight it.

Draugnar: Gonzales v Raich.(2005)

Having to do with medical marijuana grown and distributed only within the borders of California, the Court held that the Federal government has power to regulate.

Scalia even argued for the court, and he's usually quite on the opposite end of the spectrum.


Also, the fact that it was a constitutional amendment meant that Prohibition agents could and did regulate all booze, regardless of if it was inter- or intra-state.

"Who cares if he's a Mormon!"
I do, the last thing the US needs is more RELIGION in its leadership.

@ Golgo- way to be open-minded.

@ Jack_Klein
"Saying "the Constitution has been ignored for the better part of a century" sounds great, but just because you say so, it doesn't make it so.
So please explain..... I look forward to refuting you."

"As far as booze prohibition versus drug prohibition, I believe the key to understanding that is the treatment of the Commerce Clause prior to 1937 and post 1937. Prior to 1937, the Court had held much narrower opinions of federal regulatory power."

:D You can at least see where the argument is coming from, correct?

The federal government has been grabbing more and more power for over 150 years. I was born and raised in a Northern State, but I have to wonder whether or not the South was right during the civil war? They used the same voting process to secede from the Union that they used to join it, so what right did the North have to force them to stay? Ever since then, there has been little to hinder the Fed's growth.

Also, the Judiciary Branch of government is messed up. It is the only branch that has no real checks or balances. The Supreme court can make any ruling they want, and what can be done to counter it? They have even wandered into the executive branch's territory lately. And the judges are hardly unbiased.

Seems to me that most people are either pro-federal power or anti-federal power depending on what that power is. (Many) liberals love the idea of using federal power to provide health care to the poor or regulate arsenic levels in water. (Many) conservatives love the idea of using federal power to ban abortion, drug use, or flag burning. From an objective standpoint, it's the same sort of use of federal power versus state rights--it's just the ends and the means and the justification.

With respect to the judiciary, there are lots of checks. Congress can amend the constitution or pass a new law to abrogate some supreme court ruling (the latter happens quite often). Likewise, Congress can impeach a judge/justice, and the President has the power to appoint. Just because Congress fails to use these checks doesn't mean they don't exist or that they are not powerful.

The argument about the commerce clause is moot if you actually look at what word "regulate" meant when the clause was written. It meant "keep regular" not "exercise authority over." The whole reason it was written was to keep one state from imposing a tariff on another state.

"(Many) conservatives love the idea of using federal power to ban abortion, drug use, or flag burning."

I would disagree. I am considered conservative (right?) and am for legalization of marijuana and other currently illegal drugs. I also could care less about the flag being burnt or not. (Abortion is in a separate category for me and I won't touch on that here.)

A lot of conservatives are moving more towards the Libertarians' stance (Libertarians' website- http://www.lp.org/), which is small government and more freedoms. The Tea Party is an example of this, although some of them are just anti-Obama/Democrats, rather then being anti-Fed.

Oh, I can see the argument, but that doesn't mean its valid(as held by the Court). :)

I mean, technically speaking, the Supreme Court has the power to define a new right, and they don't even have to justify it. Example, when they struck down laws involving contraception in Griswold v Connecticut, (and later applied it to Roe v. Wade).

The Ninth Amendment states (paraphrased slightly) that just because we named certain rights in the Bill of Rights, doesn't mean that there aren't more that we haven't specifically mentioned. There are very few people currently living that would say that people in the United States don't have a right to privacy.

The point is that it is the role of the Court to say what the law is (Marbury v Madison). The only alternatives to a Supreme Court ruling is an amendment. Which we have done. I mean, I didn't like the result of Bush v Gore. I personally think its one of the worst verdicts the Court has handed down in the last 20 or so years. But its still law. And its still legal. I don't like the fact that Bush became President despite the irregularities, but the Court is the authority in these matters, so I can complain all I want.... what I can't say (in a logical, legal sense, not a 'I'm forbidden from speaking way') is that Bush was illegitimate.

I know sometimes that the intricacies of law can be a bit much for some people, but believe me.... once you start to understand the workings, its quite elegant and beautiful.

The Tea Party is not an example of that. Maybe there are some people in the tea party groups that feel that way, overall it is more of a:
"ohmigod, Obama is a muslim, communist, fascist that was born in Kenya, and is turning us into Russia"

Every interview and interaction I have seen with the tea party groups have just shown they are low information voters that have been tricked into anger.

Yeah, there were never any of those against George Bush.

@Hunter: I don't know whether or not you consider yourself a "conservative," but based on that short statement you are closer to a libertarian??? And I would argue that a libertarian has a more consistent view of federalism.

As for the Tea Baggers, they are not really libertarian in my opinion. But they are a varied crew.

Also, while I don't think most of the Tea Baggers have a consistent or particularly compelling view of anything, a poll out today by CBS News/NY Times shows the average "Tea Party Supporter" to be better educated than the average American, more wealthy than average, white, male, married, and over 45.

@Groverloaf:
And yet, they generally don't know any actual facts that they are upset by. They know what they heard from the right wing propaganda machine.

LOL. I am not disagreeing, Tantris. The poll I mentioned was reported in the NY Times. The reporter did a follow up interview with one of the Tea Baggers, and asked her about how she supposedly wanted to cut federal spending even though she was a recipient of Social Security. Her response, as reported by the Times:

“That’s a conundrum, isn’t it?” asked Jodine White, 62, of Rocklin, Calif. “I don’t know what to say. Maybe I don’t want smaller government. I guess I want smaller government and my Social Security.” She added, “I didn’t look at it from the perspective of losing things I need. I think I’ve changed my mind.”

I think that pretty much says it all. :)

"Yeah, there were never any of those against George Bush."
Any what? sorry, there are a couple discussions going on, so I don't know what you are referring to, but I'll be sure to argue with you when I do. :-P

@ Tantris- There are definitely racists and rednecks in the tea party, but I think that the media purposely focuses them. A recent poll came out stating, "A New York Times/CBS News poll of backers of the emerging Tea Party movement shows that its supporters are more affluent and better educated than the general public."
http://www.nytimes.com/interactive/2010/04/14/us/politics/20100414-tea-party-poll-graphic.html?ref=politics#tab=9
I am not a member of the Tea Party myself, and am not as educated on them as I could be, so I may be wrong. But having more of them say that Palin wouldn't make a good president gives me hope that they all aren't idiots. :-D

@ Grover- I don't think that Libertarian and Conservative are mutually exclusive. One can be both, just like you could have a liberal Republican (as rare as that may be). Conservatism gets grouped together with Republicans a lot, because they overlap in a lot of areas, but they are different.

@Golgo: ""Who cares if he's a Mormon!"
I do, the last thing the US needs is more RELIGION in its leadership."

It's not the fact he's religious, it's the kind of religion he practises.

The Mormons are fucking nutjobs.

:-D Yeah, I linked the same Poll Grover is talking about. A lot of older people are now dependent on SS, and they payed into their whole lives, so they do deserve to get something in return. If it was going to be cut, it would have to be done in a way that it gradually goes out, rather then abruptly leaving all the senior citizens with no means.

And there are better places to start cuts, like military for example. :D

That depends. You can have very nice and normal Mormons who are indistinguishable from regular Christians, and then you've got the crazies who believe the Lost Tribes of Israel lived in Mexico and have multiple wives.

Romney is the first kind. Plus, it barely matters, since barring a significant scandal Obama ought to win. He'll be able to raise more money than in 2008 and won't have a primary battle. I think it will be closer but if the Republicans don't find someone to united behind I doubt Barry's beatable in 2012. That's still a long ways away, though. Anything can happen.

Steve Young is a Mormon, and he's awesome... just thought I would add that, as a 49er's fan. :-)

Whats a 'regular' Christian?

Uh oh, don't get me started on social security. Current retirees did not pay into the system anywhere close to what they are taking out. It's a pyramid scheme where the elderly have decided to steal money from their kids and grandkids. But I digress....

Oh, I know what a regular Christian is. He doesn't believe in silly things like the lost tribe in Mexico. Regular Christianity has much more believable mythology, right?

No, it's like Catholics or Mainline Protestants. It's a cultural definition, smart ass.

Thanks for getting us back to the OP, DJ. Personally I don't care if our elected officials are Mormon, any other religion, or no religion at all, as long as they respect the separation of church and state.