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"The Congress shall have Power To ... regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" How is the power to re

"The Congress shall have Power To ... regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" How is the power to regulate commerce not an enumerated power of Congress?

bell-cot 2y ago
Interstate, vs. intrastate, commerce. Historically (IANAL, etc.), if it didn't cross a state line, then it was not Congress' business.
- narski 2y ago
  Wickard v. Filburn basically destroyed the commerce clause. Growing wheat on your own farm is "interstate commerce" because it impacts national wheat prices (since you would have bought that wheat otherwise!). In the second half of the 20th century, this ruling was used to great effect to limit the power of in-state businesses in the South to discriminate. On the other hand, it was also used to justify why the federal government can prevent states from legalizing marijuana, even if it won't leave the state. It's certainly a ruling with a complicated moral legacy, in that it has some clearly good use cases, a few bad ones, while also brazenly defying the clear meaning of the constitution because doing so was convenient to the state. Not sure how I feel about it, but I guess it was inevitable anyway.
- vundercind 2y ago
  You know, I think I’d be fine with non-competes that only apply to jobs with employers in the same state, and to jobs with an employer that does no business outside the state. That’d effectively be a blanket ban anyway, so sure.
ffhhj 2y ago
> ...and with the Indian Tribes;" and Aliens, they forgot the Aliens.
pdonis 2y ago
Does "commerce" include employment? Of course, with our current jurisprudence (someone else downthread mentioned Wickard v. Filburn), the Commerce Clause has been expanded out of all recognition. But I'm not sure the Founders would have included employment in "commerce". Also, even if we assume employment is commerce, is it commerce "with foreign nations, or among the several States"?
- consteval 2y ago
  Depends on who your employees are. Are they all retained to one state, or several, or international? It's commerce because money exchanges hands. Labor is sold and bought. To me, and I think almost anyone reasonable, it is obviously commerce. Personally, I think this entire textualist idea of "let's interpret the constitution like its the 1800s" is bogus. The founding fathers were not stupid and short-sighted. They could see the growth of this country and understood, as time goes on, technology changes and culture changes. They wrote the constitution in such a way where it will remain reasonable.
  - pdonis 2y ago
    > Depends on who your employees are. If this is correct, then on the assumption that employment is commerce, Congress cannot possibly have the power to regulate employment in general under the Commerce Clause; it could only regulate employment in cases where the employees are in a different state or country. > It's commerce because money exchanges hands. Labor is sold and bought. Some definitions of "commerce" are this general, but others are not. The term is ambiguous. > I think this entire textualist idea of "let's interpret the constitution like its the 1800s" is bogus. For things which didn't even exist when the Constitution was written, of course we have to make decisions about what it means that the Founders couldn't possibly make. For example, the Supreme Court had to rule on whether wiretapping is a "search" within the meaning of the Fourth Amendment, and they couldn't just ask what the Founders thought since wiretapping didn't exist then. But employment did exist then, and it wasn't a new technology or cultural development. In such cases I think the intent of the Founders is a pertinent question.
    - 2y ago

bell-cot 2y ago

Interstate, vs. intrastate, commerce. Historically (IANAL, etc.), if it didn't cross a state line, then it was not Congress' business.

narski 2y ago
Wickard v. Filburn basically destroyed the commerce clause. Growing wheat on your own farm is "interstate commerce" because it impacts national wheat prices (since you would have bought that wheat otherwise!). In the second half of the 20th century, this ruling was used to great effect to limit the power of in-state businesses in the South to discriminate. On the other hand, it was also used to justify why the federal government can prevent states from legalizing marijuana, even if it won't leave the state. It's certainly a ruling with a complicated moral legacy, in that it has some clearly good use cases, a few bad ones, while also brazenly defying the clear meaning of the constitution because doing so was convenient to the state. Not sure how I feel about it, but I guess it was inevitable anyway.
vundercind 2y ago
You know, I think I’d be fine with non-competes that only apply to jobs with employers in the same state, and to jobs with an employer that does no business outside the state. That’d effectively be a blanket ban anyway, so sure.

ffhhj 2y ago

> ...and with the Indian Tribes;" and Aliens, they forgot the Aliens.

pdonis 2y ago

Does "commerce" include employment? Of course, with our current jurisprudence (someone else downthread mentioned Wickard v. Filburn), the Commerce Clause has been expanded out of all recognition. But I'm not sure the Founders would have included employment in "commerce". Also, even if we assume employment is commerce, is it commerce "with foreign nations, or among the several States"?

consteval 2y ago
Depends on who your employees are. Are they all retained to one state, or several, or international? It's commerce because money exchanges hands. Labor is sold and bought. To me, and I think almost anyone reasonable, it is obviously commerce. Personally, I think this entire textualist idea of "let's interpret the constitution like its the 1800s" is bogus. The founding fathers were not stupid and short-sighted. They could see the growth of this country and understood, as time goes on, technology changes and culture changes. They wrote the constitution in such a way where it will remain reasonable.
- pdonis 2y ago
  > Depends on who your employees are. If this is correct, then on the assumption that employment is commerce, Congress cannot possibly have the power to regulate employment in general under the Commerce Clause; it could only regulate employment in cases where the employees are in a different state or country. > It's commerce because money exchanges hands. Labor is sold and bought. Some definitions of "commerce" are this general, but others are not. The term is ambiguous. > I think this entire textualist idea of "let's interpret the constitution like its the 1800s" is bogus. For things which didn't even exist when the Constitution was written, of course we have to make decisions about what it means that the Founders couldn't possibly make. For example, the Supreme Court had to rule on whether wiretapping is a "search" within the meaning of the Fourth Amendment, and they couldn't just ask what the Founders thought since wiretapping didn't exist then. But employment did exist then, and it wasn't a new technology or cultural development. In such cases I think the intent of the Founders is a pertinent question.
  - 2y ago