June 7, 2005
The Interstate Commerce Clause: A reductio ad absurdum
I wanted to post a strong entry about yesterday’s Gonzales v. Raich decision before the Supreme Court, where they decided that regulation of marijuana grown for personal, medically approved use was a legitimate use of the interstate commerce clause of the Constitution. But the Catallarchy guys are way ahead of me, here, here, and here. Suffice to say that they’ve probably expressed the sentiments I have much better than I could, especially since they actually, you know, study law.
About the only I have to add is my extreme disappointment with Justice Scalia. Scalia has held that the interstate commerce clause applies mainly due to it’s relation to the Controlled Substances Act (read his opinion here). I would rather that he had struck a blow against precedent in this case, and held that the CSA was a violation of the principles of federalism, but assuming the validity of the CSA, I can see how building on that reasoning could occur. He further did not challenge the precedent of Wickard v. Filburn, which disappointed me, but that’s just because I’m a cranky libertarian. Wickard wasn’t the rationale for his opinion, so I can’t get too upset.
But I was thinking about it, and I saw another possibility. I can see California politicians, rather than try to actually get their own state government working, pushing for EU-style tax harmonization from the federal government under the banner of the interstate commerce clause. After all, jobs are fleeing California for low-tax havens like Nevada, where there is no income tax. Residents who are close to neighboring states like Oregon, where there is no sales tax, regularly cross the border to purchase goods tax-free. And Californians love to purchase goods through the internet to avoid sales tax.
The federal government coming in and forcing states to adopt similar tax schemes and rates would certainly be something that they could justify under interstate commerce, because it directly affects interstate commerce. Of course, it would be an absolute nightmare, because you know the states that are attracting people won’t be pushing for tax-harmonization, it will be high-tax states like California and Massachusetts, the ones who are feeling the crunch of people leaving, that will drive up the tax burden for the rest of us.
Looking at it, I can’t see reason, in our current political climate, why we could oppose tax harmonization on constitutional grounds. And once the Constitution is eviscerated, California’s 35 million citizens bring a lot of votes to the political auction block. I subtitled this post “A reductio ad absurdum.” Meaning that if taken to it’s logical conclusion, this use of the interstate commerce clause would be absurd. Yet, I feel that to many people (such as state politicians in Sacramanto) it sounds like a good idea, not an absurdity. So if federalism is truly dead, what’s stopping them from proposing it?
Eric's Grumbles Before The Grave linked with Unlimited Power
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The federal government, despite the broad commerce power, cannot force the state governments to set any particular level of tax. The 11th amendment, as interpreted TODAY, stands for the principle that the state governments themselves cannot be ordered around by anyone, even the feds (in most circumstances).
It is only state citizens, such as Raich, who can be ordered around.
In the past, the feds have gotten around this little inconvenience through a nifty form of blackmail. They use the tax power to tax the hell out of the state’s citizens and then refuse to return the money (through spending and aid) unless the state governments “voluntarily” adopt this law or that. This is how we come to have national policies in education and other areas constitutionally reserved to states. State governments really have no recourse but to submit. (I really don’t think it pains the state politicians to do so either, they are as bad as the rest of them)
Is it possible that the feds could use this blackmail power to force a uniform tax code? I wouldn’t rule out anything.
Unlimited Power
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