Filburn, however, planted a total of 23 acres and harvested an excess of bushels. Filburn challenged the Agricultural Adjustment Act as, among other things, an invalid regulation of interstate commerce. No portion of Filburn's crop was sold in interstate commerce and the vast majority of it was consumed on his own farm. Filburn , the Supreme Court ruled that because Filburn's growing of wheat for personal use might affect the price of interstate wheat, the federales could tell him not to do it. The interpretation of Filburn has expanded over the years so that now the federal government can prevent a citizen from growing marijuana in his backyard for personal consumption, even though the interstate sale of marijuana is illegal and therefore the growing could not affect the price of a legally traded commodity.
For more than 50 years following Wickard , no law was ever struck down for exceeding Congress's power under the Commerce Clause. The Interstate Commerce Clause became, and remains, the primary source of federal power. Among the many consequences of this shift has been the massive federalization of traditional state functions, particularly in the area of criminal law -- absurdly characterized as regulation of interstate commerce.
This trend has been so widespread that no one seems sure exactly how many federal criminal laws exist. One recent estimate suggests that there are now more than 4, federal statutory crimes, covering an unimaginable variety of activities, from the most heinous crimes to the misuse of the "Smokey Bear" character or name.
The number of federal regulations that may be enforced criminally is even more difficult to quantify, with estimates ranging from 10, to , The first slight pushback after Wickard came in when the Supreme Court ruled in Lopez that the federal government could not regulate gun possession near schools; the matter had to be left to the states. This swing of the pendulum was mostly reversed in a decision in Gonzales v.
If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything. If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States" Thomas. Rescinding Private Contracts Business in the U.
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What will tax rates be? Will there be special tax credits for people buying houses? For people buying cars? Will there be special taxes on certain industries, such as banking? New taxes on health insurance provided to employees? Will judges be able to rewrite private mortgage contracts? Nobody knows; these changes are entirely up to the whim of Congress and Barack Obama. How much can a new government regulation possibly cost a business? The authors provide an example that will likely be chilling to investors: It must have been nice to own a ,square-foot office building on a prime downtown corner in a major U.
There was only one hitch. By law, no rent increases were allowed for six decades -- from , shortly after the building was erected, until , when the owner was finally able to obtain legislative relief. Here's how it happened: Instead of a cost-of-living escalator, Trostel protected himself against inflation with a gold clause -- a common provision at the time -- which gave the lessor an option to demand payment in gold rather than dollars. Trostel never figured that two years later, in , President Franklin D.
Roosevelt and his New Deal Congress would abrogate all gold clauses, ostensibly to maintain government reserves of the metal during the economic emergency of the Great Depression. Rescinding private contracts was deemed necessary because of an economic emergency. The same question had come up in the context of restricting civil liberties during the Civil War and Justice David Davis wrote "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.
No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. In a dissent in Blaisdell , Justice Sutherland wrote "If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned. We consider ourselves to offer a more stable legal environment than Argentina and Brazil, but perhaps that is only because we haven't been tested as sorely.
First, however, let's consider the scope of the problem. Perhaps you are familiar with the Federal Register. It's published every day and provides notice of executive orders as well as actual and proposed new rules by the various federal regulatory agencies. During the month period ended March 31, , the Federal Register contained an astonishing 77, pages. At the beginning of each calendar quarter, the executive orders, rules, and regulations in the Federal Register that become final law are included in the Code of Federal Regulations.
If you were to purchase a current edition of the CFR from the U. Government Printing Office, you would need enough shelf space for more than bound volumes. By comparison, the entire U. Code, which contains all of the laws passed by Congress and signed by the president, requires roughly 35 volumes -- about one-sixth the number devoted to the CFR. As of mid-year , the CFR comprised rules and regulations from independent and executive agencies.
More regulation is not necessarily bad for everyone. It may make the U. The authors pick out the FDA as the "one agency that exemplifies the problems inherent in delegated power". Congress told the FDA to allow only those drugs "proven safe and effective" but "For all intents and purposes, Congress has left it to the FDA to determine the degree of safety and efficacy, the level of certainty required from investigators, the quantity and quality of data to be examined, the meaning of 'substantial evidence', and the criteria for reaching conclusions 'fairly and responsibly'.
By relinquishing its lawmaking function, Congress gave the FDA both latitude and incentives to delay drug approvals unnecessarily. And by allowing unelected bureaucrats to exercise such power, Congress left the public without an effective means to protest. The First Amendment guarantees freedom of speech. Politicans, however, have made it illegal to spend a lot of money on political speech, e. An ad encouraging people to eat Big Macs has more legal protection than an ad detailing the tax money and other favors that a politician has handed out to his buddies.
As a resident of a one-party state Massachusetts , I have no personal interest in this chapter. Assured that a Democrat will win, both Republicans and Democrats typically do not waste effort campaigning or advertising here. The authors, however, grabbed my attention with the absurdity of some of the rules: The Court explained that 'reform may take one step at a time,' and went on to rationalize that a 'valid distinction More or less every new law and regulation seems to assist current politicians in their quest to continue enjoying power and receiving a government paycheck: The careers of sitting politicians can more easily be perpetuated if the speech of their opponents can be repressed.
In Citizens United v. Federal Election Commission , the Supreme Court turned back the tide of government suppression of political speech by ruling that the Federal Election Commission should not have been able to suppress a film critical of Hillary Clinton. How did the incumbents take this? Would we then say that only registered voters would have the right to read? The book reminds us that we can't always rely on the police to protect us. The Virginia Tech shooting is used as an example:. Seung-Hui Cho, the Virginia Tech killer, shot his first victims at 7: The police failed to find Cho, cancel classes, evacuate the campus, or notify the parents of one wounded girl who died three hours later.
Two hours later, Cho entered another building where classes had begun and shot a few dozen more people. Concerned about their own safety, police did not enter the building until Cho was nearly done with killing his 32nd victim. Most of the federal restrictions on gun possession stem from United States v. The authors remind us that this case was decided by judges who had heard only from the federal government's lawyer; the men accused of possessing guns were not represented before the Supreme Court due to lack of funds and time: Neither defendant showed up before the Supreme Court; they had no written brief to support them, and no legal representation at oral argument.
The Court did nothing to appoint other counsel or re-schedule the case. Instead, Justice McReynolds produced a muddled opinion that has confused lawyers, law students, judges, and the public for almost seven decades. When it was all over, the Supreme Court reversed the lower court's holding that the National Firearms Act violated the Second Amendment.
Justice McReynolds ruled that only those weapons related to militia use were protected by the Amendment. Gun ownership advocates finally won a limit on federal power to restrict: District of Columbia v. Heller ; handed down after The Dirty Dozen was written, but addressed in the latest paperback edition. This chapter concerns Korematsu v.
The case has never been overturned. The authors remind us that a handful of Americans did oppose the internment: Edgar Hoover thought that alleged sabotage by Japanese Americans should be handled on a case-by-case basis, requiring probable cause to take action and proper judicial processes.
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Senator Robert Taft, the conservative Republican from Ohio, was alone in objecting on the Senate floor to enactment of Public Law , which was then passed by voice vote. Political pressure influenced the evacuation and internment debates in , and political concerns held up the release of Japanese Americans almost three years later. Between these two episodes, they received a cruel and unnecessary civics lesson in the power of politics to dictate military and judicial decisions.
The Dirty Dozen
The authors draw parallels between the Korematsu case and the detention of Jose Padilla , a U. Padilla was detained for years without trial:. We cannot permit the executive branch to declare that a U. The potential for such tragedies exists whenever anybody is discharged for lack of evidence, then commits a crime. In the case of suspected terrorists, the stakes are immense.
So a powerful argument can be made for changing the rules and establishing a preventive detention regime -- tilting toward national security even though some civil liberties might be compromised. But if we do change the rules, the process cannot be implemented by executive edict without congressional or judicial input. And it cannot be law on-the-fly, with no knowledge of the rules by anyone other than the executive officials who are responsible for their enforcement. This chapter covers one of my favorite subjects: The authors explain that it was originally designed for piracy and smuggling.
The Confiscation Acts allowed the Union to seize and forfeit the rebels' Northern property and the property of those who aided the Confederacy. When the Supreme Court upheld these acts against constitutional challenges, it worked 'a revolution in forfeiture law that persists to this day'. The authors lay out of the facts behind Bennis v.
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Michigan , in which the government's seizure of an automobile was ruled constitutional:. Basically the wife suffered three times: The authors discuss some changes in the direction of greater rights for property owners since the Bennis decision, but basically both federal and state governments have the right to take your stuff and make you sue them to get it back, even when you have not been convicted of any crime. The authors describe how in the old days "public use" meant something like a road that everyone could use.
There has been a drift starting in with Berman v.
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Parker towards allowing municipalities to take private land and hand it over to commercial developers with the goal of increasing property tax revenues. The recent landmark case is Kelo v. City of New London , in which the city condemned Suzette Kelo's house in order to hand it over to developers whom they expected to pay an additional million dollars per year in property tax. This turned out to be legal, according to the Supreme Court. It did not help the town of New London, though, because the development scheme fell apart in the Collapse of ?
Sandra Day O'Connor dissented from Kelo:. This chapter chronicles courts' attempts to determine to what extent the government may render a property owner's interest less valuable by regulation, i. We are not sponsored by or associated with any particular link unless specifically stated. Furthermore, providing a link does not imply an endorsement of the linked entity, and we do not guarantee the accuracy of any information contained in any link.
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12 AVOIDABLE Business Social Media Fails, a.k.a. “The Dirty Dozen”
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