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Part 2: Conservatives Should Support Fed Legalization Of Pot In Washington State

Why Conservatives Should Support Federal Legalization of Pot in Washington State - Seattle Criminal Lawyer Blog

In Part 1, we talked about the original understanding of the Federal commerce power and how it has been eroded.

The gross, substantial expansion of the Federal Government’s power that occurred in the twentieth century is discussed below.

Up until about the 1930’s the Supreme Court continued to at least consider the “subjects” of the commerce clause (“commerce” “among the states”) when evaluating whether the Federal Government’s actions were a valid exercise of the commerce power.

But the court later abandoned this too. The abandonment was basically for political reasons. FDR’s progressive New Deal policies oftentimes were inconsistent with commerce clause jurisprudence. In turn, FDR threatened the court with his “Court Packing” plan. The Supreme Court began to change its view of the commerce clause and the limits of the Federal Government’s power.

After succumbing to political pressure, the Supreme Court determined that, although activity may be characterized as purely intrastate, any activity having a close and substantial relation to interstate commerce that may burden interstate commerce falls within the scope of the Federal Government’s commerce power.

A 1937 case NLRB v. Jones & Laughlin Steel Corp., concerned a company that produced steel in Pennsylvania only, but imported substantial resources from outside Pennsylvania and shipped 75% of its steel outside of Pennsylvania. Later this steel company fired employees involved with union activity. The Federal Government reacted by filing a lawsuit suit against the company.

The lawsuit claimed the steel company violated the National Labor Relation Act (NLRA) by firing employees involved with union activity. The steel company responded by contending Congress had no power to regulate their purely intrastate activity.

But the Supreme Court upheld the NLRA as a valid exercise of the commerce power. The court concluded the steel company’s business had such a close and substantial relation to interstate commerce. It reasoned any potential labor dispute could substantially cripple interstate commerce.

This principle evolved into the “substantial effects” doctrine. Congress now had power to rule over even purely intrastate activity so long as it can be said that such activity can have a substantial effect on interstate commerce.

The “substantial effects” doctrine substantially expanded the Federal Government’s power and blurred the lines between state police powers and Federal enumerated powers. But the Federal Government’s expansion of power did not stop there.

Soon the Supreme Court adopted the “aggregation principle.” The aggregation principle amplified the “substantial effects” doctrine to effectively permit the Federal Government to regulate any class of activities without any proof the particular individual activity has a substantial effect on interstate commerce.

The aggregation principle provides that if it can be said a particular individual activity, when repeated by many people, will have a substantial effect on interstate commerce, Congress may regulate it pursuant to the commerce power regardless of whether the individual activity is purely intrastate and itself has no effect on interstate commerce.

In the 1942 case Wickard v. Filburn, the Federal Government put quotas on the production of wheat in order to limit supply and artificially raise prices. A lone farmer sold wheat in accordance with the quota, but he produced more and used it simply to support his individual farm.

Long story short, this farmer was violating Federal law. The Supreme Court upheld the quota as a valid exercise of the commerce power pursuant to the new “aggregation principle” even though the farmer’s activity was purely intrastate and limited to his own farm. The court reasoned that if every farmer did the same it would frustrate the goal of keeping supply low and prices high.


What people do on their own private land is none of the Federal Government’s business. And this jurisprudence caused power to be centralized in the Federal Government, eroded Federalism, threatened state sovereignty, and totally blurred or eradicated the line between state exercise of police power and Federal enumerated powers.

And this is still the law today.

The gross expansion of the commerce power caused the Federal Government to have limitless power. This jurisprudence effectively burned the constitutional framework that was set in place by the people and our founding fathers.

This is antithetical to conservative values and convictions concerning limited federal government and state sovereignty.

In reality, there is no longer any real limits on the federal government’s power. This is true despite Justice John Roberts’ disingenuous claim that Obamacare could not rest on an exercise of the commerce power in National Federation of Independant Business et al. v. Sebelius (the Obamacare case). He (obviously giving into political pressure) nonetheless turned around and expanded Federal power.

To learn more about why conservatives should support federal legalization of of intrastate marijuana possession in Washington State, read part 3.