Who Says the Commerce Clause is Boring?

It's fitting that my first post here would be about a Commerce Clause case, since I'm a long-time devotee of the increasingly powerful grant of Congressional authority. One of the few Constitutional provisions that grants Congress the power to regulate day-to-day private activities (by granting authority to regulate interstate commerce), it has been used by Congress, with varying degrees of success, to regulate things like violence against women (struck down), handguns near schools (also struck down), and marijuana cultivation (upheld!). The fact that none of these things have any realistic association with interstate commerce illustrates the fact that Congress has necessarily stretched the limits of the Commerce Clause in order to satisfy its yearning for plenary police power over private activity.

And the Supreme Court has reacted to this envelope-pushing with varying degrees of tolerance. The conventional wisdom is that the "conservative" justices favor limited commerce power, promoting the federalist principle that the regulation of private activity should be left to the states. "Liberal" justices, meanwhile, favor federal regulations and are therefore willing to stretch the definition of "interstate commerce."

The pro-federal regulation camp won a major victory last year in Gonzales v. Raich, where the Court held that the private, purely intrastate cultivation of marijuana could legitimately be regulated by Congress under the Commerce Clause. The "liberals" on the Court carried the day. This was a head-scratcher to a lot of non-law geeks who figured the liberal justices would side with the pot smokers.

So, what could be more exciting than a Commerce Clause case about marijuana? How about a Commerce Clause case about child pornography? That's right, the Eleventh Circuit, applying Raich, has held that a federal statute criminalizing child pornography is constitutional where the film and paper used to create the offending materials traveled in interstate commerce. In U.S. v. Smith, the Eleventh Circuit read Raich as standing for the premise that "Congress may regulate purely intrastate activity, whether economic or not, that could be rationally considered incident to Congress’s comprehensive regulation of interstate economic activity." (Emphasis added.)

This basically means that Congress can regulate anything as long as it involves somebody buying something. Or, not buying something that they might otherwise have bought if they weren't doing the thing. If that isn't plenary federal police power I don't know what is.