President Obama’s “empathy” qualification for judicial nominees applies to more than just the traditional hot-button issues that come before the Supreme Court. In opposing John Roberts’s nomination, then-senator Obama said that a properly qualified and empathetic judicial nominee should possess a view of the Constitution’s commerce clause (the basis for nearly all regulation by the federal government) that permits government action “only tangentially related to what is easily defined as interstate commerce.” There has been some effort by the Supreme Court in recent years to narrow this broad view of the commerce clause, but reining in regulation has been the exception, not the rule, ever since the 1940s. Judge Sotomayor’s decisions explicitly involving the commerce clause reveal little about how she would rule on commerce-clause cases as a justice. But juxtaposing those decisions with her overall judicial philosophy reveals dangerous similarities to the mindset of the New Deal–era justices who stretched the commerce clause, and as a consequence the powers of the federal government, far beyond what the framers had intended.
The commerce clause gives Congress “Power to . . . regulate Commerce . . . among the several states.” It was intended to prevent the building of trade barriers between states; the inability to do so was a key failing of the Articles of Confederation. Law professor Randy E. Barnett notes in his article “The Original Meaning of the Commerce Clause” that in the 63 uses of the word “commerce” in the
Federalist Papers, it never refers to anything other than “trade or exchange.” This meaning was understood by the public at the time the Constitution was adopted, and reinforced by John Marshall, the first chief justice of the United States, in
Gibbons v.
Ogden. Furthermore, the commerce clause was understood as referring only to trade or exchange involving more than one state. “The enumeration of the particular classes of commerce to which the power was to be extended,” to quote Chief Justice Marshall, “presupposes something not enumerated” — that “something” being what the federal government could
not regulate, namely “the exclusively internal commerce of a State.” However, economic changes brought on by the Industrial Revolution would lead the court to alter the definition of the commerce clause over time.
In 1942, in
Wickard v.
Filburn, the court implemented the commerce-clause doctrine embraced by President Obama. Just as the Obama administration has refused to waste the opportunity provided by the current economic crisis to expand federal regulation, so too the New Deal Congress made the most of the Great Depression. In 1938, Congress passed the Agricultural Adjustment Act, which regulated how much wheat a farmer could produce. Roscoe Filburn was brought to court for exceeding his production allotment under the act. Filburn argued that his wheat was meant only for private consumption. It was not going to enter into commerce of any kind, let alone interstate commerce.
Using reasoning in accord with Sotomayor’s assertion that judges “make policy,” Justice Jackson, in his
Wickard decision, quoted Justice Holmes as noting that “commerce among the States is not a technical legal conception, but a practical one,” drawn from experience. Justice Jackson continued that economic effects have “made the mechanical application of legal formulas no longer feasible.” In place of “legal formulas” came whatever the court
could view as having a “substantial effect on interstate commerce,” including Filburn’s wheat grown for his own use on his own farm. This holding in
Wickard allowed Congress to regulate virtually any activity, economic or not. Not only did the
Wickard decision “extend words beyond their normal, obvious import,” as Chief Justice Marshall had warned against in
Gibbons, but it also made the federal government, as Justice Thomas would later note in
Gonzales v.
Raich,
“no longer one of limited and enumerated powers.”
The most notable commerce-clause case handled by Judge Sotomayor was
U.S. v.
Giordano. Sotomayor held that a federal law prohibiting phone calls that transmit the contact information of a minor in order to engage the minor in illicit sexual activity could apply not only to calls across state lines, but also to calls within a state. She based her view on the Rehnquist Court’s holding in
U.S. v.
Lopez — the first attempt since World War II to rein in commerce-clause regulation — which said in part that Congress could regulate the “instrumentalities” of interstate commerce. In
Giordano, the “instrumentality” was the nationwide telephone network.
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