The Worst Idea Ever! of the day
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Writing for Slate’s How Can We Fix the Constitution? project, Theodore Ruger posits that the real problem with the Supreme Court’s deliberations over ObamaCare is this pesky notion that the federal government is constrained in any way.
What seems fairly certain, however, is that the doctrinal silliness surrounding the Commerce Clause doesn’t best serve the values of our federalism. It doesn’t do enough to encourage state experimentation, institutional pluralism, greater democratic accountability, or deference to the geographic sorting of people with different preferences. By focusing on the outer limits of congressional authority in a search for what little remains that is exclusively of state concern, Commerce Clause doctrine distracts us from the vast realm of overlapping authority, where the most important federalism questions arise today. Very few spheres of regulatory interest are today “truly national” or “truly local”; instead they are the business of both the states and the national government. What matters most for state sovereignty is the manner in which state variation and experimentation is permitted to flourish, even (and especially) once the federal government has also entered the field, and potentially “preempted” the states. In the pre-emption arena, the federal courts, not Congress, have often represented the real threat to state authority, by assuming that federal laws pre-empt state laws even if the statutes don’t explicitly say so.
Congress’s galloping jurisdiction, stemming from Franklin Roosevelt’s dastardly court-packing scheme, has been a real problem as the federal government has taken it upon itself to screw up our food, our housing, our schools, and much more. But the best solution is surely not to surrender to federal supremacy in all things. Ruger would rewrite the Commerce Clause to not only expand federal power, but to effectively erase the Tenth Amendment.
Congress shall have the power to regulate matters that are in the national interest, but federal enactments shall pre-empt state law only in instances of direct conflict, or where the pre-emptive force of such enactment is made explicit by statute, or is based on a considered finding by an agency to whom Congress has delegated the authority to make such determination.
So not only Congress, but federal bureaucrats, would get to trump state law, at any time, on any subject.
Congratulations, Mr. Ruger! You’ve earned New Hampshire Watchdog’s first-ever Worst Idea Ever! of the day.
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