The Government on the Extent of the Commerce PowerMelancton Smith • Monday January 17, 2011 6:17 AM PDT •
In a dissent from a denial of cert. in Alderman v. United States, Justice Clarence Thomas highlights just how far the Government is willing to take the Commerce Power. The issue in Alderman was whether Congress may prohibit a convicted felon from possessing body armor. See 18 U.S.C. section 931. The vest had been sold in interstate commerce when the California manufacturer sold it to a distributor in Washington State. Somehow Alderman, a convicted felon, came into possession of the vest and was wearing it when arrested. Because the vest once traveled across state lines, the federal government claims the power to regulate who may purchase or possess it.
So how far does this federal power go? According to the appellate attorneys for the Government: Congress could ban possession of french fries that have been offered for sale in interstate commerce. That’s right. Because those Idaho potatoes once traveled from a farm in Idaho to a Mickey D’s in Flint, Michigan, Congress could ban the restaurant from selling the golden fries.
If this is the case, are there any real limits and Congress’s powers? Representatives from our own Government say no and we have little reason to doubt that this logic will continue to hold up in Court.