The commerce clause is being used to by the federal government to regulate the economic aspect of our lives.  It claims it has the right to establish laws that regulate how businesses conduct themselves.   This is not correct because the commerce clause was always meant to break down trade barriers that states may attempt to impose onto each other.

Now lets assume, for the sake of argument, that the federal government’s interpretation is correct and look at one particular enumerated power which is the power to tax.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

This gives congress two powers which are the power to lay taxes and the power to collect taxes.   The power to lay taxes is the power to establish laws that demand citizens pay taxes while the power to collect taxes is the power to establish laws that actually do collect taxes.   Without the power to collect taxes the federal government wouldn’t have the ability to collect them and under the tenth amendment that power would fall to the states. 

It may seem redundant to just assume that if the congress has the power to create a law that it also has the power to enforce that law but the necessary and proper clause of the constitution gives congress the power to create laws for all forgoing powers of the United States.  The only way it can enforce a law is if their is a power to do so and whenever that power is missing then that power falls to the states because of the tenth amendment.

Most of the enumerated powers in the constitution come in sets such as the power to create a law and the power to enforce it.

To COIN Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To PROVIDE for the Punishment of counterfeiting the Securities and current Coin of the United States;

To DEFINE and PUNISH Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

This is not some antiquated interpretation because the twenty-sixth amendment states that any person over the age of eighteen can vote and it also gives congress the power to enforce this amendment with appropriate legislation.

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2. The Congress shall have POWER to enforce this article by appropriate legislation.

It appears that in order for the federal government to enforce any law it must have the power to do so expressly given to it and if that power is not given to the federal government then it falls to the states.   This is why the writers of the constitution gave the federal government the power to enforce tax laws because if it were to fall to the states they may not do it.

Now lets look at the commerce clause once more and imagine a different interpretation where it was designed to remove trade barriers that states may attempt to impose on other states.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

A state may impose a trade restriction against another state and attempt to prosecute anyone who is in violation of that state’s own commerce laws.  The defendant then brings up the federal commerce law that makes it legal for him to conduct this kind of trade across the state border and invokes the supremacy clause which states that all laws made in pursuance of the constitution are supreme.  This invalidates the state’s own commerce law in favor of the federal government’s commerce law.

This is how the commerce clause is suppose to work but even if a person did not accept this interpretation you would still have to point out where the federal government has the power to enforce any laws made under that interpretation.   Their isn’t any so that power falls to the states in which the states may enforce it because their is no constitutional requirement for a state to enforce a federal law and since states can opt out of the enforcement of federal law then they can essentially nullify those federal laws simply by not enforcing them.

Edward Browning Bosley
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