The internal market is becoming like the Commerce Clause

One snarling match over in the US is the way in which the Commerce Clause (essentially, the Feds get to say what goes on in inter-state commerce, not the States) seems to give the Feds power over rather more than might be gleaned from the original Constitution. For example, it\’s been (successfully) argued in the Supreme Court that the Feds\’ power over inter-state commerce gives it power over intra-state commerce, for the latter affects the former.

A bit misty here but something about Roosevelts restrictions on wheat (or corn?) farming being allowable as a bloke growing it for his own consumption still affects inter-state commerce. So he can be banned from growing it for his own consumption.

Looks like the internal market rulse are becoming the EU equivalent:

A consultation from the European Commission published yesterday claimed that 30m adults within the block of countries were “excluded” from the single market because they do not have a basic account.

The EC said: “Being denied access or having difficulty in using payment services may therefore prevent consumers from fully participating and taking advantage of the internal market and may result in persisting inequalities and a risk of financial and social exclusion.”

The document claims that without a bank account, people cannot benefit from cheaper goods and services online and face “difficulties with taking jobs, renting property, receiving wages and benefits, paying bills and taxes”.

Now leave aside the actual result here (whether all having bank accounts is desirable or not) and look at the logic used to reach the conclusion that the EU has the power here.

With that logic there\’s very little in the economic sphere that the EU does not have power over. For example, we only have to plug in Amartya Sen\’s points about those with too little income being excluded from markets (it\’s the basis of his work on famines) and we\’ve a justification for the EU determining minimum welfare levels.

Those who are illiterate are excluded from markets, giving the EU power over education systems.

I know, you can say that this is all ridiculous, that it won\’t pan out that way. But when we look at the US and see how the Commerce Clause has expanded we can point and say that this really is how, in hte one example we have available to us, it has expanded.

No, really, Wickard v. Filburn:

Wickard v. Filburn, 317 U.S. 111 (1942), was a U.S. Supreme Court decision that dramatically increased the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.

The Supreme Court, interpreting the United States Constitution\’s Commerce Clause under Article 1 Section 8 (which permits the United States Congress \”To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;\”) decided that, because Filburn\’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn\’s production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.

It isn\’t, at least in part it isn\’t, how much power is or is not going to be handed over in the next treaty or two, nor how much power the self-amending part of Lisbon will allow, it\’s also, and perhaps much more importantly, the amount of power the EU will claim under slippery concepts like the internal market rules. As the Feds have done under the Commerce Clause.

To give you a further example, the legality or not legality of drug legalisation will, I would say undoubtedly will although you can differ, become a sole EU decision:

Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), was a case in which the United States Supreme Court ruled on June 6, 2005 that under the Commerce Clause of the United States Constitution, which allows the United States Congress \”To regulate Commerce… among the several States,\” Congress may ban home-grown cannabis even where states approve its use for medicinal purposes.

5 thoughts on “The internal market is becoming like the Commerce Clause”

  1. Judges routinely trample over the US Constitution. You’d think that this might inhibit constitution-worshippers, but there’s little sign of it.

  2. A great deal of the power of the US Government is founded not on the powers formally given it by the constitution, but by imaginative interpretation of the inter-state commerce provision and by its ability to bribe states into compliance with federal wishes. Both these possibilities are quite clearly open to the EU authorities, who are busily exploiting them as we speak.

  3. The difference is that whereas the Feds in the US have had to trample all over their constitution and invent all sorts of things in it that the framers nevers intended and the people don’t want, the EU has no such problems.

    Because the EU constitution was written by our Feds, and they made sure it contains the important clause which states that anything the Union turns out not to have the power to do, it is hereby entitled to take that power whenever it wants.

    And they will, you watch.

    And in fact they’re not even really Feds because the EU is building a Unitary State, not a Federal one.

    Can we leave yet?

  4. Federal judges routinely trample the US Constitution as dearieme points out. The Federal judiciary is fast becoming our Politburo.

    In those States where sobriety has prevailed, we elect our judges and are not nearly as afflicted by judicial fiat. Our choices, of course, occasionally annoy our betters, as they rely on unaccountable judges to ram their agenda down our throats when they cannot win elections.

    The Federal judiciary, including the Supreme Court, is not accountable to the citizens. In that, they are much like your overlords in the EU.

    Leave at the first opportunity.

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