Justice Thomas and the Commerce Clause

(By Jeff Wall, Former Clerk to Justice Thomas) 

Of the various powers granted to Congress by Article I, Section 8 of the Constitution, none has been more central to modern federal legislation than the authority “[t]o regulate commerce . . . among the several states.”  The Commerce Clause has been the basis for congressional enactments dealing with topics from child support recovery to religious land use, to take only a couple of examples.  In the sixty years following the New Deal era, the Supreme Court repeatedly upheld such statutes as within the scope of Congress’ commerce power.  The Court interpreted the term “commerce” broadly to cover different forms of economic activity, and it held that, in addition to regulating interstate commerce, Congress can regulate activities that substantially affect interstate commerce.

In United States v. Lopez (1995), however, the Supreme Court set aside a federal law prohibiting gun possession near schools.  The Court reasoned that such conduct does not substantially affect interstate commerce, and thus the law was unconstitutional under the Court’s existing Commerce Clause framework.  In concurrence, Justice Thomas took aim at that framework as inconsistent with the Clause’s “original understanding.”  First, Justice Thomas argued that the Clause authorizes Congress to regulate only “commerce” in a classic sense, i.e., the buying, selling, or transportation of goods or services across state lines.  Second, Justice Thomas contended that, by its terms, the Clause authorizes Congress to regulate only interstate commerce itself—not activities that substantially affect interstate commerce.  In Justice Thomas’ view, “the power to regulate ‘commerce’ can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States.  Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities’ effects on interstate commerce.”

The Supreme Court returned to the scope of Congress’ commerce power a decade later in Gonzales v. Raich (2005), which addressed whether the federal drug laws could regulate two Californians growing their own marijuana for medical use.  Over Justice Thomas’ dissent, the Court held that Congress’ commerce power extends to the intrastate cultivation and use of medical marijuana.  Justice Thomas responded that “[i]f Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”  Justice Thomas maintained that the Commerce Clause does not permit Congress “to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.”  For Justice Thomas, there are limits on Congress’ Commerce Clause authority because “the Framers understood” that “[t]here is a danger to concentrating too much, as well as too little, power in the Federal Government.”