[Radar]

POLICE POWERS

It is sometimes argued that the Alleged Federal power to restrict immigration comes from the police powers that all governments supposedly have. Yet the Federal Government was not by the Constitution endowed with general police powers.

While the State governments possess general police powers, the Federal government does not, at least not according to the original meaning of the pertinent Constitutional provisions. The Federal government is a limited government, with enumerated powers. The State governments are plenary governments, whose powers are limited only by the Constitution. An important watershed between the Federal and State powers lies roughly along the fault line between State police powers and the Federal power to regulate commerce among the states. That which belongs to commerce among the states is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the State. Gibbons v. Ogden, 9 Wheat. 1, 189, 210; Brown v. Maryland, 12 Wheat. 419, 448; The License Cases, 5 How. 504, 599; Mobile v. Kimball, 102 U.S. 691; Bowman v. Chicago & N.W. Railway, 125 U.S. 465; Leisy v. Hardin, 135 U.S. 100; In re Rahrer, 140 U.S. 545, 555.

Take a close look at Article 1 Section 8. Note that the Feds are given specific powers to define and punish crimes in only two clauses, namely:

Clause 6: "To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;"

Clause 10: "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations"

Remember that the Tenth Amendment reserves to the States and to the People those powers not delegated to the Feds. Thus, since the Feds have not been delegated the power to punish any crimes other than those listed in Art. 1 Section 8, the Constitution does not confer general police powers upon the Federal government.

One might argue that the general police power arises from the specific powers that are granted, plus the "necessary and proper" clause, Clause 18, which grants Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." One would be wrong. Take a closer look at those clauses, quoted above, that authorize the Feds to punish crimes. Clause 6 authorizes Federal punishments for counterfeiting U.S. coins. Congress is also authorized to coin money, in Clause 5. If the "necessary and proper" clause allowed the Feds to derive criminal jurisdiction from other defined powers, then the counterfeiting clause would have been unnecessary. Likewise, if the Feds could, from the power to " regulate Commerce with foreign Nations", in Clause 3, derive the power to punish felonies committed on the high seas, then Clause 10 would have been unnecessary. Madison's notes from the Federal Constitutional Convention reveal that the Framers took great care in defining the powers of the Federal government, and excluded many proposed powers that have since been assumed by Congress, in blatant disregard for the limits set in the Constitution (such as aid to education, social security, Medicaid, etc.). The pages of Eliot's debates, containing the records of the ratifying conventions, contain many assurances from the Federalists to the complaining Anti-federalists that the "necessary and proper" clause would not be used to expand Federal powers beyond what were enumerated. How then, you may ask, did the Framers and Ratifiers expect the new Federal Government to carry out its powers, without the power to criminalize defiance? For example, how were the Feds supposed to regulate commerce, without the ability to punish transgressions of the Congressional laws laid down in that field? The answer is deceptively simple. In our own times, when Congress assumes the right to criminalize nearly every form of misconduct, we have forgotten that civil penalties can be highly effective. The Swiss, for example, traditionally have punished tax evasion with civil fines and forfeitures. In the U.S., we have added unnecessary criminal penalties to a civil fine and forfeiture scheme that would have sufficed without those nasty criminal penalties.

How, then, did Congress come to assume the power to criminalize everything we do? It is a long, sordid story. Here are a few highlights.

The growth of the Federal Government in the second half of the twentieth century, and the growth of Federal criminal law, during the same period, can be blamed squarely upon one source: the deliberate, fraudulent misconstruction of the Commerce Clause (Clause 3, of Article 1, Section 8 ).

Until 1937, The Supreme Court held fast to two bedrock principles of Commerce Clause law: the power to regulate commerce (trade) did not carry with it the power to regulate productive activities (such as manufacturing); and the power to regulate commerce among the states (interstate commerce) did not carry with it the power to regulate commerce within the states (intrastate commerce). The power to regulate intrastate commerce, and the power to regulate productive activities, were routinely held to lie within the states' police powers.

The issue came to the fore when, in 1887, Congress enacted the Interstate Commerce Act, and, in 1890, Congress enacted the Sherman Antitrust Act. . When cases involving these laws first reached the Supreme Court, it reaffirmed the doctrine, from older Commerce Clause cases, that Congress could not regulate activities such as "production," "manufacturing," and "mining." See, e.g., United States v. E. C. Knight Co., 156 U. S. 1, 12 (1895) ("Commerce succeeds to manufacture, and is not part of it"); Carter v. Carter Coal Co., 298 U. S. 238, 304 (1936) ("Mining brings the subject matter of commerce into existence. Commerce disposes of it"). In A. L. A. Schecter Poultry Corp. v. United States, 295 U. S. 495, 550 (1935), the Supreme Court struck down regulations that fixed the hours and wages of individuals employed by an intrastate business, because the regulated activity related to interstate commerce only indirectly. The Court characterized this distinction between direct and indirect effects of intrastate transactions upon interstate commerce as "a fundamental one, essential to the maintenance of our constitutional system." Id., at 548. Activities that affected interstate commerce directly were within Congressional power; but activities that indirectly affected interstate commerce were beyond the powers of Congress. Id., at 546. Otherwise, the Supreme Court recognized, "there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government." Id., at 548. Two years later, in the watershed case of NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), the Court, threatened by Roosevelt with packing and salary reductions (!), abandoned the distinction between "direct" and "indirect" effects on interstate commerce, and upheld the National Labor Relations Act against a Commerce Clause challenge. Id., at 36-38 The Court held that intrastate activities that "have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions" are within Congress' power to regulate. Id., at 37. In United States v. Darby, 312 U. S. 100 (1941), the Supreme Court upheld the Fair Labor Standards Act, and came close to demolishing the distinction between Federal powers and State police powers, when it stated: "The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce." Id., at 118. In United States v. Wrightwood Dairy Co., 315 U. S. 110, 119 (1942), the Supreme Court held that the commerce power "extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power". Thus, out of whole cloth, the Supreme Court invented a "substantial effects" test, which left the Feds with unbridled discretion in the exercise of powers never granted by the Constitution. This process reached its absurd conclusion in the case of Wickard v. Filburn, where the Court upheld the application of amendments to the Agricultural Adjustment Act of 1938 to the production and at-home consumption of home-grown wheat. 317 U. S., at 128-129. The Wickard Court explicitly rejected earlier distinctions between direct and indirect effects on interstate commerce, and stated: "[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as `direct' or `indirect.' " Id., at 125. The Wickard court reasoned that the grain Wickard raised on his own land and fed to his own livestock could reduce the market price for grain, since every acre of wheat he grew and consumed represented another acre of wheat he did not need to buy on the open market! The Wickard Court emphasized that although Filburn's own contribution to the demand for wheat may have been trivial by itself, that was not "enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial." Id., at 127-128.


(To be continued)