Understanding Congressional power, especially as it relates to the Commerce Clause in Article I of the U.S. Constitution, is not an easy task. My hunch is that many students walked out of yesterday's lecture on the Commerce Clause wondering, "what the heck is LeMieux talking about." As I said yesterday, the central question here is what are the limits of Congressional power? That's really what's at the heart of discussions concerning the Commerce Clause. An excellent example of this concerns whether Congress can pass laws aimed at protecting the environment. As Benjamin Wittes, of the Atlantic Monthly, pointed out in a 2005 article:
Consider the Constitution's commerce clause, which empowers the national legislature to regulate "commerce … among the several states." Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil-rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power, requiring that laws enacted under it deal in some sense with—well, interstate commerce. I have considerable sympathy for this line of argument, but its potential dangers to the environment are hard to overstate. For while the environment itself is intrinsically interstate, not all environmental-protection measures obviously constitute regulations of commerce "among the several states"—or even regulations of commerce at all. Can the government, under the Endangered Species Act, protect—as one conservative judge poetically put it—"a hapless toad that, for reasons of its own, lives its entire life in California"? Can it, under the Clean Water Act, protect isolated seasonal pools (which are not interstate) used by migratory birds (which are)?His point is, if enough judges on the Supreme Court believe that Congressional power under the Commerce Clause is not very broad, might the Court start striking down laws aimed at protecting endangered animals and wetlands? Good question and one that makes environmentalists in the United States lose sleep.
