Nov 21, 2007

Supreme Court Justice Clarence Thomas on the commerce clause and police power

I write separately only to express my view that the very notion of a "subsantial effects" test under the Commerce Clause is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce.

~ Clarence Thomas, Supreme Court justice

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