Can Obama Use the Commerce Clause to Implement his Agenda?

There are two ways by which the Commerce Clause is interpreted: broad application and narrow. These application types are used based on the definition of commerce believed to be attached to Congress’s power to “regulate commerce,” (Art. 1, Sec 8.3). Those who believe that commerce should be defined as any “gainful activity” (Barnett, 2001, p. 4) tend to apply the broad application to the interpretation of the Commerce Clause. On the other hand, those who believe that commerce is defined as merely the transfer of goods and services gravitate toward the narrow application of this clause. Below is a brief argument as to why the broad interpretation of the Commerce Clause should not be used.

The primary reason why the broad interpretation of the commerce clause should not be used is because it falls outside the boundaries of the original intent of the Founders. Their intent was obviously to institute a limited government, and the notion that any “gainful activity” should have the opportunity of being regulated goes far beyond any reasonable definition of the word “limited.” Gainful activity could be applied to virtually anything—from production, to agriculture, to your child’s lemonade stand, all of which could affect interstate commerce in one way or another. If the broad interpretation of the commerce clause is to be used on such a widespread and regular basis, the U.S. should cease to refer to itself as a limited government.

In contrast, the narrow interpretation of the commerce clause reflects both the meaning of the language used at the time of the creation of the Constitution as well as the original intent of the Framers. Limited government is more appropriately reflected when the definition of commerce is also limited to the transfer of goods and services. Also referred to as “intercourse,” this definition specifies the type of interstate economic activity that Congress is allowed to regulate, rather than leaving the interpretation open to any interstate economic activity as is the case with the broad interpretation. For these reasons, I believe that the narrow interpretation is more in keeping with the original intent of the Framers when they created the Constitution.