[This is the third and last post on the Interstate Commerce clause and the limits on the power of the Federal Government deriving from it. The first post was the story of farmer Roscoe Filburn. The second was the story of how the Federal Government got the power to fine him for growing his own wheat.]

Congress and the Federal Government have used the Interstate Commerce clause to justify the control of nearly every aspect of our lives. Often, the Supreme Court has approved it.

After the Court upheld the fining of Roscoe Filburn for growing his own wheat, the Commerce clause has been used to authorize further powers.

In 1944, to remove interference in Federal control of interstate commerce by the states, the Court struck down an Arizona railroad safety law (Southern Pacific Co. v State of Arizona).

Going Filburn one better, the Court ruled in Gonzalez v Raich that the growing of ones own marijuana for medical purposes, even in a state that allowed it, interfered in the Federal Government’s goal of ending interstate commerce in the substance altogether.

The Supreme Court has twice used the Commerce clause to prohibit racial bigotry. In Katzenbach v McClung, the Supreme Court ruled that racial discrimination by a restaurant was a burden on interstate commerce and, therefore, the Civil Rights Act that prohibited it was constitutional.

In Heart of Atlanta Motel v United States, the Court found that racial discrimination by a hotel was constitutionally prohibited by the Civil Rights Act using the same interstate commerce argument.

It appeared that there was no limit on the power that Congress could exercise under the Commerce clause, until Alfonso Lopez, Jr. walked into his San Antonio high school with a pistol.

Alfonso was immediately arrested and charged under a Texas law prohibiting gun possession on school property. The next day, the Federal Government charged Alfonso with violation of the Guns-Free School Zones Act and Texas dropped their charges against him.

The case made it to the U.S. Supreme Court (US v Alfonso Lopez, Jr.) where the Government claimed that the prosecution of Alfonso and the Guns-Free School Zones Act were constitutional under the Interstate Commerce clause. They claimed that the gun would lead to violent crime which would create expenses harmful to interstate commerce. They also claimed that Alfonso’s school would be seen as a dangerous place, thus discouraging learning and the promotion of the interstate commerce that education would foster.

The Court said to the Federal Government, in effect, “you’ve gone too far.” They ruled that to have found for the Government would have required the Court to “pile inference upon inference in a manner that would convert congressional authority under the Commerce Clause to a general police power…” The Court went on to admit that “some of our prior cases have taken long steps down that road…but we decline here to proceed any further.”

The Lopez case set three limits to interstate commerce: 1. It must be a channel of interstate commerce; or 2. It must be an instrumentality (a means) of interstate commerce; or 3. It must be an activity that substantially affects or relates to interstate commerce.

Will these limits on Interstate Commerce hold up? Perhaps the opinion of the Court in the “Obamacare” case (National Federation of Independent Business v Sebelius) gives a clue, at least for this Court. While it was decided that the Government has the power to tax those who do not participate in the Plan, the Court said that, had the case come down to the Commerce clause, the penalty against non-participation would have been struck down. The Court’s reasoning was that the Government’s interstate commerce regulatory power cannot force an individual to buy when they choose not to buy.

The extent to which this limit on the Commerce clause is extended likely depends on the longevity of the sitting Justices during the current President’s term, and, on the extent to which the Justices withstand the forces urging them to yield.