On reopening: Wield the Commerce Clause, Mr. President

By Sean Harshey

The recent dispute between President Trump and some Democratic governors regarding reopening the economy presents a very interesting question of authority.

To begin with, the economy was not shut down at the national level, but rather state-by-state, with various additional or different measures ordered by county and local authorities. In fact, criticism of governors has ranged from not taking strong enough actions or implementing measures too slowly to governors behaving as dictators and restricting activities with little or no obvious connection to preventing the spread of coronavirus. Additionally, robust debate has flared as people questioned the different measures taken in different states as well as how different businesses and activities were treated. For instance, people are free in most places to go into grocery stores but not churches. Other states are not restricting the freedom to worship. Some states have “stay-at-home” orders in place, while other states do not.

These differences and disputes all across the United States show that the daily realities of the coronavirus response are decided and implemented at the local and state levels.

This week when President Trump announced that the administration will begin the decision-making process on when to reopen the economy his critics and several Democratic governors objected, claiming that decision belonged to the individual states. Shortly thereafter, a few states announced they were working together amongst themselves to arrange a coordinated effort to restart their economies at the state level. This continues the recent rush by liberal state leaders to embrace states rights against federal laws with which they disagree, such as those regulating immigration and drugs.

The irony of this situation is the left has expanded the size, scope and power of the federal government over the past century in many ways, including use of the Commerce Clause. Article 1, Section 8, Clause 3, of the U.S. Constitution gives Congress the power “to regulate commerce … among the several states.” Even though the use of the Commerce Clause is complicated somewhat by the widely expanded use of executive orders by presidents over the past several years instead of working with Congress to pass laws achieving policy objectives (this is also true in regard to the coronavirus matter), restarting the U.S. economy is a matter the federal government should direct, or at least coordinate.

In the case of NLRB v. Jones & Laughlin Steel Corp. (1937), the Supreme Court dramatically broadened the federal government’s power to regulate state activities due to their effect on interstate commerce. The court went on to expand the federal government’s authority under the Commerce Clause to include even penalizing farmers for growing food for their own families’ consumption, notwithstanding that such food would never leave the farm, much less enter interstate commerce. The court reasoned that the cumulative effect of individual persons growing food for their own consumption could have some impact on interstate commerce, thus falling within the purview of the federal government’s powers under the Commerce Clause. Liberals have been generally happy with such cases because they vested increasing power in the federal government over the states.

Liberals have spent the past century using the Commerce Clause and the subsequent avalanche of cases in other areas consolidating more and more power at the federal level to dictate policy to states. Like with open borders and immigration, liberals suddenly find themselves on the receiving end of federal policy, playing defense and retreating to cities and states in an effort to maintain their policies until they can retake control of the levers of power in the monstrous machine they created along the Potomac.

Regardless of one’s position on federal authority versus states’ rights, the wide variety in state and local responses to the coronavirus makes the case for at least some federal involvement in order to coordinate an economic return to normal. For example, some states forbid “non-essential” travel (defined differently everywhere, or not defined and with varying levels of enforcement), while other states do not. This is likely the easiest matter in which to assert federal authority because the movement of interstate commerce would be severely disrupted by each state and local area having various bans on travel for trucks, trains and aircraft moving products. Not only regarding the vehicles transporting goods across the country, but the workers, vehicles and businesses necessary to load, receive, unload, store and transport these goods at the next level. Will trucks be permitted to travel through a state? Will fuel be available at the expected places? Will the warehouses and workers be there to receive the contents of the trucks, trains or airplanes? This is interstate commerce in its purest sense and needs to be coordinated at the national level to avoid having a gridlock of fiefdoms being ruled over by state and local authorities with an impossible-to-navigate patchwork of different bans and restrictions.

Using the awesome power of the Commerce Clause as its framework was laid out by liberals, the federal government should have broad authority to restart much of the U.S. economy over the objections of Democrats claiming that power rests solely with them at the state and local levels.

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